Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF229532 Patrick J. O’Hara, Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes, Janis Shank McLean and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Jose Alvaro Barraza was convicted of being a felon in possession of ammunition. On appeal, he contends (1) the prosecutor committed a Brady violation by failing to disclose the criminal history of a witness on its witness list—defendant’s mother (mother)—whom defendant ultimately chose to call as his sole witness, and (2) the trial court intimidated mother into invoking her Fifth Amendment right and refusing to testify. We will affirm.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
PROCEDURAL SUMMARY
On January 6, 2010, the Tulare County District Attorney charged defendant with being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)), and various other counts, all of which were later dismissed. As to the ammunition count, the information alleged that defendant had suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty and the trial court found the special allegations true. Defense counsel moved unsuccessfully for a new trial on the ground that defendant was denied the right to present mother’s testimony.
The trial court sentenced defendant to two years in prison on the ammunition conviction, doubled pursuant to the Three Strikes law, plus a one-year prior prison term enhancement, for a total of five years.
FACTS
On November 9, 2009, a detective and his team conducted a lawful arrest of defendant, a convicted felon, at a residence on C Street. Officers found him in the attic crawl space above the middle bedroom of the house. When defendant was taken into custody, a live nine-millimeter round was on the floor of the bedroom where he had been laid down and arrested. Pursuant to a search warrant, the officers conducted a lawful search of the residence.
Other than the one round found near defendant, no other ammunition was found in the house. In the garage, however, officers found an extensive collection of live ammunition—more live nine-millimeter rounds, live 12-gauge shotgun shells, a high-powered rifle round—and also a leather shoulder handgun holster. The garage was furnished with chairs, a table, a large couch, a recliner, shelves with storage containers, a bed, and a wooden vanity. The drawer of the vanity contained ammunition, and a plastic storage container contained the high-powered rifle round. On the couch were three live nine-millimeter rounds, which although generally used in a handgun, could also be used in a rifle. On the bed, which was piled with a lot of blankets and clothing, was an open lock box containing a camera, a computer device, and six live shotgun shells. More live shotgun shells were found under the mattress of the bed.
The detective interviewed defendant and took his statement. Defendant said he had no idea why he was under arrest. When asked where he lived, defendant said he lived at the C Street residence, in the garage. He explained that his wife and three children lived in the house, and that he and his girlfriend lived in the detached garage. They had lived in the garage for about a month (he later changed this to a month and one-half). He said the house and garage belonged to mother and her boyfriend.
When the detective asked defendant about the ammunition, he initially said that sometimes his friends left things there. They would drop by and he had no control over that. Also, mother’s boyfriend, who was a hunter, sometimes brought ammunition over and they would “change those items.” Defendant said, “[S]ometimes, []I mean I got friends, you know what I mean, or whatever[] and sometimes, [ y]eah, I am going to have bullets in my garage or whatever.” The detective interpreted this to mean that the ammunition might belong to people defendant knew who brought it over. Defendant said that some of the ammunition in the garage was mother’s boyfriend’s.
Defendant admitted he had bullets in the garage. He said he had all different kinds of ammunition. He said he could have anything in the house and he knew it was there. When the detective told him they found a nine-millimeter round near where he was arrested, he said, “uh-huh.” Defendant said there was.22-caliber shotgun ammunition and he had all kinds of ammunition in there. He said, “I got shell gun ammo, I got [.]22 ammo, I got different kinds of ammo, you know what I mean, that they just gave to me or I just have, you know what I mean? Cause my step-dad, he likes to hunt a lot, too, you know what I mean? And sometimes I give it to him and sometimes he gives me his ammo.” When the detective asked defendant where all of the ammunition came from, he answered, “I can have ammo in my house.” Defendant consistently denied having a gun, and he did not specifically state that the ammunition was his. No weapons were found.
Parole Agent Jennings, defendant’s parole officer, testified that he had informed defendant that he could not possess weapons or ammunition.
A Department of Motor Vehicles record established that defendant stated in 2008 that his current address was the C Street residence.
DISCUSSION
I. Background
Before trial, the prosecution placed mother’s name on its witness list. On January 21, 2010, the first day of testimony, defense counsel informed the court that he intended to call mother as a witness, and that the prosecutor had told him earlier that the prosecution did not intend to call her. Defense counsel then stated:
“[S]o I will disclose what [mother] intends to say. [¶] … [¶] Essentially her testimony is going to be that it was her boyfriend’s ammunition and that [defendant] is not a permanent resident at the residence in which he was found.”
Later the same day, in his opening statement, defense counsel told the jury:
“And the fact of the matter is there is going to be reason to doubt the government’s accusation in this case. [¶] Now the government named a lot of people who were going to testify. And the fact of the matter is none of them are going to say that [defendant] said, ‘That’s my ammunition.’ [¶] However, we are going to call a woman named [mother]. She is the one who lives at the residence. That is her house. She is actually [defendant’s] mother. What she is going to say is that ammunition is my boyfriend’s ammunition and [defendant] is just staying in the garage at the time. [¶] And the fact of the matter is none of these people that were here for the government is going to be able to persuade you beyond a reasonable doubt that [defendant] is guilty of what he is charged with ….”
Detective Payne testified for the prosecution and the court recessed for the evening.
The next morning, on January 22, 2010, the prosecutor immediately informed the court:
“Your Honor, I just brought to the Court’s attention that the witness that the defense is proposing to have testify on defendant’s behalf has suffered three prior felony convictions. One is a felony conviction of [Vehicle Code section] 23153, which is driving under the influence [(DUI)], with bodily injury. [¶] … [¶] And a few months later she again [got] another DUI. [¶] Our records at the district attorney’s office show that that was a felony DUI. And it would make sense because she had previously been convicted of felony DUI. The rap sheet indicates a misdemeanor. I have had that checked … for its accuracy. [¶] And then in ‘06 or ‘07, she also suffered a felony [section] 273[, subdivision] (a)(8), child endangerment.”
The prosecutor moved to exclude mother’s testimony under Evidence Code section 352 and, alternatively, asked to be allowed to impeach mother with her prior felony DUI with injury.
Defense counsel responded:
“First of all, as to the Court excluding her on the grounds of relevance and [Evidence Code section] 352. I mean, her testimony is going to be that her boyfriend and not the defendant owned the ammunition, and that the defendant wasn’t actually in control and wasn’t actually in possession. I mean, she’s going to testify that one of the elements of the crime with which [defendant] is charged is not met. So I think that’s highly relevant, and I think it’s … highly probative.”
The court agreed and stated it would allow mother to testify. On the next question, defense counsel stated:
“Her prior felony convictions, first of all, I’m going to object to that under late discovery. [Mother] was on [the prosecutor’s] witness list until that picking [of] a jury yesterday. This is the first I’ve ever heard of anything like this. If she were on his witness list, this would be a Brady violation. The fact that he’s now disclosing this impeaching information after he’s taken her off his witness list and I’ve put her on mine, you know, that’s late discovery. I can’t be prepared to meet this. This is my entire trial preparation. I’m going to object very strongly.” (Italics added.)
The court summarized:
“Our issue is, as I understand, [mother] … was a People’s witness, and this [impeaching information] was never discovered [sic] to the defense. And based upon that, they have built the defense on [mother].”
The prosecutor responded:
“Your Honor, the People have never had any intention of calling her to the stand. I made that clear at the beginning before the trial started. She was someone that was in the reports, and I just put her on the witness [list]. We had no intention—”
A discussion then occurred regarding which of mother’s prior convictions might be admissible for impeachment purposes. The prosecutor stated:
“The fact that [mother] is also on probation at this time …, in 2007 she was given two years— [¶] … [¶] I have concern if she implicates herself. She’s a felon. She’s not supposed to be in possession of ammunition here. If she indicates she might take the stand and implicates herself in the crime—I’m just wondering if she needs to be assigned to counsel for advice.”
Defense counsel responded:
“Well, I think, obviously, that’s not my look-out.… However, if she refuses to testify, I’m stuck in the position of [not] being able to present a defense.”
The court overruled the discovery objection, based upon the prosecutor’s statement that he did not intend to call mother.
Nevertheless, defense counsel pointed out that the January 19, 2010 witness list contained mother’s name. Counsel said he felt he was entitled to rely on the prosecution’s list as to what witnesses they intended to call. The prosecutor responded:
“Your Honor, that is a formal witness list that’s been provided each time there was an additional item of discovery. I would just point out a witness list. I was not intending to call that witness. I made that clear to the Court on that day. I even told the defense I’m not going to call her. I don’t have any report of anything that she said or did that would help or not help the case. [¶] … [¶] And I must remind the Court that this case did not start with felon in possession of ammunition. This had great more serious charges …. That’s why our witness list was so expanded. It was not until very recent that I decided to just proceed with felon with ammunition. [¶] … [¶] Once we were done with the investigation, then I decided to just go with the felon in possession of ammunition. And at that time I did not go back and redo the witness list.”
Defense counsel reminded the court that the prosecutor dismissed the other counts on January 18, 2010, and sent the current witness list over the next day.
Meanwhile, the court ordered counsel for mother. When counsel arrived, the court informed him:
“[Mother] wishes to testify on behalf of [defendant]. I think she’s the mother. [Defendant] is charged with possession of ammunition as a felon. [Mother], I believe, will testify that … the ammunition is not her son’s ammunition, but it is her boyfriend’s ammunition. And he’s the one that had the ammunition. [¶] [Mother] is on felony probation for child neglect or abuse. The concern is she may have had knowing possession, she may be in violation of a criminal statute.”
After mother spoke to her counsel, defense counsel called her to the stand, still outside the jury’s presence, and the following occurred:
“[DEFENSE COUNSEL:] [Mother], would you mind telling the Court where you live?
“[MOTHER:] I was living at [the C Street residence], and the house, my daughter took over.
“[DEFENSE COUNSEL:] And was your boyfriend living there at the time?
“THE COURT: Hang on for just a moment, please. [¶] My understanding, [mother], is that you have been convicted of a felony in the past and you are on felony probation?
“[MOTHER]: Yes, sir.
“THE COURT: If that is true, one of the standard conditions of being on probation is that you may not have in your possession or control, ammunition. [¶] Also, if you are a felon, it is against the law to have in your possession or control any ammunition.
“Now, you have the right—if you are called as a witness in this case, you have an absolute constitutional right under the California and Federal Constitution[s] not to be compelled to be a witness against yourself. If you believe that any question may tend to incriminate you, you have the right to refuse to testify. However, you may testify if you wish. [¶] I’m not telling you what to do. I’m just saying—and I’ve appointed [mother’s counsel] as your attorney, and so is there anything else that you’d like to say?
“[MOTHER’S COUNSEL]: Good morning, your Honor. [¶] I want on the record, I spoke to my client briefly about the facts and about her record. I laid out a scenario where she could be seen to be in possession of either a firearm or ammunition. And as a felon, that would make her in violation of probation [and] the law. [¶] I advised her based on that she should not give testimony that would incriminate her and she should exercise her right under the Fifth Amendment not to be compelled to testify.
“THE COURT: [Mother], knowing all this, what do you intend to do?
“[MOTHER]: I just want to say the truth. I don’t want to testify to what’s going to harm me. [¶] I know I never had arms at my house. I never had nothing that’s illegal at my house.
“THE COURT: I’m not talking about arms here. Specifically we are talking about ammunition.
“[MOTHER]: Uh-huh.
“THE COURT: As I indicated, you have the right to testify, but then you have the absolute right not to testify. If you believe it can incriminate yourself after consultation with your lawyer—he’s advised you, but it is ultimately your decision. You need to tell us if you wish to testify or not.
“[MOTHER]: I guess not. I mean, if that’s going to, you know
“THE COURT: So is your decision that you will not testify in this matter based upon potential self-incrimination?
“[MOTHER:] Yeah, I won’t testify then.
“THE COURT: All right. Anything else, [defense counsel]?
“[DEFENSE COUNSEL]: I’d only like to note I don’t think at this point I’ve asked her any questions that raise the possibility of incriminating herself.
“THE COURT: I think her address, her boyfriend based upon the offer of proof, all could tend to incriminate her. I’m going to find that this witness may tend to incriminate herself based upon the proffered offer of proof, and she’ll be excused from further testimony.
“Okay, ma’am. Thank you.”
When the jurors returned to the courtroom, defense counsel stated: “One more thing on the record. Having called [mother], she exercised her privilege.” The defense rested without presenting any witnesses.
II. Brady Violation
Defendant contends the prosecution committed a Brady violation by failing to disclose mother’s criminal history. In the alternative, defendant argues that the prosecutor’s violation of discovery statutes denied his due process rights.
A. Law
“‘Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all.…’ [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 279.) The duty to disclose such evidence is wholly independent of the prosecutor’s obligation under section 1054 et seq. (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244.) “‘For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.]” (People v. Verdugo, supra, at p. 279.) “In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042, quoting Kyles v. Whitley (1995) 514 U.S. 419, 437.) Disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51.) “‘[A]n incomplete response to a specific [Brady] request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.’ [Citation.] Given this possibility, ‘under the [“reasonable probability”] formulation the reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case.’” (In re Brown (1998) 17 Cal.4th 873, 887; United States v. Bagley (1985) 473 U.S. 667, 682-683.)
“‘Evidence is material [under Brady] if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.]’” (People v. Verdugo, supra, 50 Cal.4th at p. 279.) “Materiality … requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’ [Citation.]” (People v. Salazar, supra, 35 Cal.4th at p. 1043.) “It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 907-908.) “‘Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]’ [Citations.]” (People v. Verdugo, supra, at p. 279.) “[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” (United States v. Agurs (1976) 427 U.S. 97, 108.) Thus, although “the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called ‘Brady material’— … strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281–282, fn. omitted; accord, People v. Salazar, supra, at pp. 1042–1043.) “[T]here is no ‘error’ unless there is also ‘prejudice.’ [Citations.] [¶] It follows that harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24, with its standard of ‘harmless beyond a reasonable doubt, ’ is not implicated.” (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7; see Kyles v. Whitley, supra, 514 U.S. at p. 435.)
The gist of defendant’s argument is that when mother was placed on the prosecution’s witness list, the prosecutor had a duty to disclose mother’s criminal past to the defense because the information was, at that time, favorable to the defense as impeachment evidence. The prosecution’s failure to disclose the information led the defense to believe mother had no criminal history, and the defense relied on that representation when it decided to build its defense around her and call her as the sole defense witness. Defendant now argues that the outcome would have been different, for various reasons, had the defense been told about mother’s criminal history. We reject this argument for the following reasons.
First, mother ultimately invoked her Fifth Amendment right and refused to testify, which she presumably would have done even if defense counsel had been aware of her criminal history.
Second, even if defense counsel had found another witness (e.g., mother’s boyfriend) to testify to the evidence mother would have offered—that the ammunition was her boyfriend’s and defendant was not a permanent resident in the garage—the evidence would have had no impact on the outcome, as we will explain.
To show that defendant was a felon in possession of ammunition (§ 12316, subd. (b)(1)), the prosecution had to prove (1) he was a felon, (2) he had ammunition under his dominion and control, and (3) he had knowledge of its presence. (People v. Cordova (1979) 97 Cal.App.3d 665, 669.) It was not disputed that defendant was a felon and that he was aware the ammunition was present, so the only issue was whether he had dominion and control of the ammunition. This is the issue defendant believes mother’s testimony could have affected.
Section 12316, subdivision (b)(1) provides: “No person prohibited from owning or possessing a firearm … shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.”
Criminal possession of ammunition may be established by actual possession or constructive possession. (People v. Williams (2009) 170 Cal.App.4th 587, 625.) “Actual possession means the object is in the defendant’s immediate possession or control…. Constructive possession means the object is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) “[M]ore than one person may possess the same contraband. (People v. Williams[, supra, at p.] 625 [drugs and weapons found in room used by defendant, in house owned by someone else].)” (People v. Miranda (2011) 192 Cal.App.4th 398, 410.) “The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].” (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.)
In this case, defendant’s dominion and control were overwhelmingly established by defendant’s statements that he had various types of ammunition, that he exchanged ammunition with mother’s boyfriend, that he was allowed to have ammunition and knew it was there, and that he had lived in the garage for a month or more, and by evidence that the ammunition (except for one round that apparently dropped from his person) was stored and strewn about in the fully furnished garage where he lived. Mother’s testimony that some or all of the ammunition was owned by her boyfriend would have had no impact on the element of possession. And her testimony that defendant was not a permanent resident in the garage was of no help because defendant admitted he lived there at the relevant time.
And, finally, if defense counsel had decided not to present this evidence through any witness and therefore had refrained from promising the jury this testimony, there is again no reasonable probability that the outcome of the trial would have been different in light of the overwhelming evidence against defendant.
Accordingly, we conclude that even under the best-case scenario proposed by defendant—that he would have been able to present the proposed evidence—the outcome of the trial would not have been different and therefore the information regarding mother’s criminal history was not material under Brady. The prosecutor did not violate Brady.
For the same reasons, we conclude any statutory violation was harmless. “Section 1054.1 (the reciprocal-discovery statute) ‘independently requires the prosecution to disclose to the defense … certain categories of evidence “in the possession of the prosecuting attorney or [known by] the prosecuting attorney … to be in the possession of the investigating agencies.”’ [Citation.] Evidence subject to disclosure includes ‘[s]tatements of all defendants’ [citation], ‘[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged’ [citation], any ‘[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts’ [citation], and ‘[a]ny exculpatory evidence’ [citation]. ‘Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)’ [Citation.]” (People v. Verdugo, supra, 50 Cal.4th at pp. 279-280.)
A violation of section 1054.1 is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Verdugo, supra, 50 Cal.4th at p. 280.) “[T]he defendant must establish … that ‘“there is a reasonable probability that, had the evidence been disclosed …, the result of the proceedings would have been different.”’ [Citations.]” (People v. Bohannon (2000) 82 Cal.App.4th 798, 805, overruled on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.)
For the reasons we have already explained, defendant has failed to show prejudice. Any error in not disclosing mother’s criminal history to the defense was entirely harmless because the evidence against defendant was overwhelming, and there is no reasonable probability that disclosure of the information, or introduction of evidence regarding ownership of the ammunition, would have affected the outcome of the trial.
III. Witness Intimidation
Defendant asserts that the trial court denied his right to compulsory process by using vague threats of criminal liability to intimidate mother into abandoning her testimony after she had already consulted with court-appointed counsel. We see no interference with defendant’s constitutional right to present a witness in his defense.
A defendant has a right to present witnesses in his own defense. (Chambers v. Mississippi (1973) 410 U.S. 284, 302; Webb v. Texas (1972) 409 U.S. 95, 98 (Webb); In re Martin (1987) 44 Cal.3d 1, 29.) “[T]he right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment.” (Washington v. Texas (1967) 388 U.S. 14, 17–18, fn. omitted.) “The right to compulsory process is independently guaranteed by the California Constitution. In the words of article I, section 15, ‘The defendant in a criminal cause has the right … to compel attendance of witnesses in the defendant’s behalf.…’” (In re Martin, supra, at p. 30.)
“A defendant’s constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf. [Citations.]” (In re Martin, supra, 44 Cal.3d at p. 30.) Thus, this basic right is violated whenever the prosecutor or the trial court intimidates a witness. (See Webb, supra, 409 U.S. at p. 98.) To demonstrate a violation of this right, a defendant must show that the trial court committed misconduct by “engag[ing] in activity that was wholly unnecessary to the proper performance of [its] duties and of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify ….’ [Citations.]” (In re Martin, supra, at p. 31.) It must also be shown that there is “a causal link between the misconduct and [the defendant’s] inability to present witnesses on his own behalf.” (Ibid.) In addition, defendant “‘must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense.’ [Citation.]” (Id. at p. 32.)
It is entirely proper, however, for a prosecutor or a trial court to warn a witness of the risk of self-incrimination and her Fifth Amendment rights. (People v. Bryant (1984) 157 Cal.App.3d 582, 591-592; see People v. Schroeder (1991) 227 Cal.App.3d 784, 787-788 (Schroeder).) Indeed, “when a trial court has reason to believe that a witness may be charged with a crime arising out of events to which he might testify, it has a duty to insure that the witness is fully advised of his privilege against self-incrimination. [Citation.]” (People v. Warren (1984) 161 Cal.App.3d 961, 972, fn. omitted.) The court may advise the witness or appoint counsel to advise the witness. (Schroeder, supra, at p. 788.) If the court chooses to advise the witness, it must do so in such a way as to fully advise the witness of the risks of testifying and the right not to testify, but not to coerce the witness not to testify. (Id. at p. 789.) The coerciveness of an advisement is evaluated in light of all of the circumstances. (Id. at p. 793.)
Defendant relies on Webb, supra, 409 U.S. 95 and Schroeder, supra, 227 Cal.App.3d 784to support his argument. In Webb, the petitioner called his only witness for his defense. The witness had a prior criminal record and was serving a prison sentence at the time of his proposed testimony. The court, on its own initiative, admonished the witness as follows:
“‘Now you have been called down as a witness in this case by the Defendant. It is the Court’s duty to admonish you that you don’t have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you’re up for parole and the Court wants you to thoroughly understand the chances you’re taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don’t owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking.’” (Webb, supra, 409 U.S. at pp. 95-96.)
Defense counsel objected that the court was exerting duress on the mind of the witness and pointed out that none of the prosecution’s witnesses had been admonished in the same fashion. When defense counsel stated he was going to ask the witness to take the stand, the court stated: “‘Counsel, you can state the facts, nobody is going to dispute it. Let him decline to testify.’” (Webb, supra, 409 U.S. at p. 96.) The Supreme Court concluded that the trial court deprived the defendant of due process by driving his sole witness off the stand. “The trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole.” (Id. at p. 97, fn. omitted.)
In Schroeder, the defendant attempted to call a witness on his behalf. The witness had entered a conditional plea in connection with the events surrounding the charges against defendant. The witness’s counsel appeared and informed the court that the witness had been advised of her Fifth Amendments rights and he had recommended to her that she not testify. She, however, remained willing to testify. After the court received this information, it readvised her concerning her privilege against self-incrimination. “[The witness] stated that she had had an opportunity to discuss the matter with her attorney, that she understood her rights, and that she nonetheless wished to testify.” (Schroeder, supra, 227 Cal.App.3d at p. 789.) The court, however, continued to ask the witness if she understood what her attorney had told her. The court took a break and let the witness and counsel discuss the issue. The court then had the witness begin her testimony outside the presence of the jury to determine whether she should be called and questioned before the jury. The court interrupted the questioning and advised the witness to consult with counsel before answering a question anytime he indicated he wanted to talk to her. The witness indicated a willingness to testify, while her counsel stated he was advising her not to answer questions. The court again intervened, explaining that it had to protect the rights of the defendant as well as ensure that the witness understood what her counsel was telling her. The court stated that it had never seen a witness disregard the advice of her counsel to not answer a question that might incriminate her. The court stated: “‘[S]omebody around here ought to have some understanding of what this Fifth Amendment is about and how it works. In this particular instance, [the witness], how it may result in—I don’t know if it means your plea being accepted or rejected, or whether or not you end up going to prison or not. I have no idea, but you better have some idea. So if you need more time to discuss this, [counsel], you let me know now.’” (Id. at p. 790.)
Counsel for the witness stated he did not believe he needed more time. The witness indicated that she wished to have the opportunity to tell the truth about what occurred. The court continued to reiterate to the witness that her counsel believed that testifying was not in her best interests. After some questions from the witness, the court and counsel advised the witness that her only duty pursuant to the subpoena was to come to court; she could refuse to answer questions. The court stated, “‘You’ve got no burden to do anything beyond that.’” (Schroeder, supra, 227 Cal.App.3d at p. 791.) The court advised the witness that anything she said that day could be used against her in further proceedings. The court continued: “‘But the thing is you are going to decide one way or another whether or not you want to take a lawyer’s advice or handle it yourself. [¶] You know, you can also decide whether or not you want to have brain surgery … or leave it up to a neurosurgeon. You know, you can decide, well, you think you’re okay so you’re not going to have brain surgery, or you can leave it up to a neurosurgeon to advise you because they’re trained in that field. It’s kind of similar to that.’” (Id. at p. 792.) Defense counsel objected to the analogy and suggested that the discussions could result in coercing or intimidating the witness. The court suggested that the witness confer with her counsel again, but her counsel said they had discussed everything already. The court then asked the witness if she wanted to follow counsel’s advice or not. She replied, “‘I guess I don’t want brain surgery, so yes, I do. I guess. If that’s his strict advice then I have to follow it.’” (Id. at p. 793.)
The appellate court found error, stating: “This lengthy interchange makes it clear that the trial court exceeded its duty simply to ensure the witness was fully apprised of her privilege against self-incrimination. She was so advised and expressed her desire to testify. At this point, the court had no duty, and no right, to prevent a willing witness from incriminating herself or to convince her to follow her attorney’s advice not to testify. Yet, the trial court in essence became an advocate repeatedly cautioning [the witness] about the folly of her decision. Even after defense counsel expressed concern that the court’s comments were bordering on coercion and intimidation, the court persisted. [¶] Not only were the court’s actions wholly unnecessary to the proper discharge of its duties, they unquestionably were coercive in context. Simply by the nature of the proceedings, the court’s words carried an intimidating force. This is particularly so here since [the witness] had entered a plea in her case and may have been wary of doing anything which might displease the court. By its frequent interruptions, admonishments and questions, the court inappropriately made clear to [the witness] that it disagreed with her intended action and felt that she should not testify.” (Schroeder, supra, 227 Cal.App.3d at p. 793.)
The facts of the present case are distinguishable from these cases. Here, the trial court fulfilled its duty to ensure that the witness was properly advised of her privilege against self-incrimination and her right not to testify. The advisement was not extensive or heavy-handed. And, although mother had spoken to an attorney, she thereafter stated her belief that she had never possessed anything illegal at her house because she had never possessed arms, a misconception the court properly clarified. When she realized she had in fact possessed something illegal, she chose not to testify. In light of all the circumstances, we are confident that the court’s advisement was not coercive. Furthermore, as we have explained, evidence that someone other than defendant owned the ammunition would not have affected the overwhelming evidence that defendant possessed it. Defendant’s characterization of this ownership evidence as a “complete defense” to his crime is simply wrong. In sum, we see no violation of defendant’s constitutional right to a fair trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Poochigian, J.