Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA087516 Arthur Lew, Judge.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Trayvon Bishop, convicted of first degree murder, contends the jury was improperly instructed on the provocation needed to reduce first degree murder to second degree murder, and that trial counsel rendered ineffective assistance when he failed to object to the testimony of two prosecution witnesses whose pretrial statements implicating appellant were allegedly the product of coercion. We conclude appellant’s contentions are not well-founded and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged in a one-count information with the murder of Ebony Jones. (Pen. Code, § 187, subd. (a).) The information further alleged that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury and death within the meaning of Penal Code section 12022.53, subdivision (d); that appellant personally and intentionally discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c); and that appellant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b).
The underlying trial was appellant’s second. The first trial ended when the jury was unable to reach a verdict.
1. Prosecution Evidence
The principal prosecution witnesses were Raymond Gibbs and his friend, Ryan Simpson, both teenagers. On July 22, 2006, at approximately 9:45 p.m., Gibbs and Simpson were sitting on Simpson’s front porch. Jones, driving a gray car, parked across the street from Simpson’s house. Appellant pulled up behind her in a red car. Jones and appellant got out of their respective vehicles. Appellant approached Jones and the two engaged in a verbal altercation. Simpson heard Jones say: “All this over a female” or “All this over a bitch.” Appellant then shot Jones several times, once after she fell to the ground. According to both witnesses, when appellant shot Jones, they were standing face to face, very close together. Simpson saw Jones’s hands before she fell and observed nothing in them. Gibbs was not sure, but believed Jones’s hands were empty and raised to chest level when appellant shot her.
Simpson testified in person. Gibbs testified at the first trial, but went into hiding to avoid testifying at the second. Therefore, the court permitted his testimony from the first trial to be read to the jury.
Appellant and Jones were well known to Gibbs and Simpson.
Earlier in the day, Simpson had heard appellant complain about someone “messing with his girl.” A little later, Simpson observed appellant arguing with his mother.
When questioned by authorities immediately after the shooting, both Gibbs and Simpson said they saw nothing. Simpson specifically stated that he and Gibbs were inside the house when the shooting occurred.
In September 2006, Detective Angus Ferguson confronted Gibbs at his school and told him that other people had said he had seen what happened. The detective told Gibbs to tell the truth or he would go to jail. Gibbs told the detective what happened because he did not want to go to jail for lying. Gibbs denied having been promised anything by the detectives for testifying and denied having been threatened, other than being told he could go to jail for not telling the truth or for lying to the police. Gibbs stated that he told the truth to the detectives, at the preliminary hearing and in his testimony at trial.
At the time of this interview, Gibbs knew that appellant had been arrested.
Detective Ferguson and another detective interviewed Simpson in September 2006. The detectives told Simpson they did not believe his original story. They told Simpson that appellant had said Simpson was present at the crime and played a tape in which someone appeared to say Simpson was there. The detectives told Simpson that if he did not tell the truth, they would find out and he would be incarcerated.
After the mistrial was declared, Simpson was ordered to return for the second trial. Simpson told the prosecutor that he feared for his life and did not want to testify again. The prosecutor told Simpson that if he did not come to court to testify, he would be incarcerated. Simpson ran away from home in order to avoid testifying at the second trial. On April 23, 2008, Simpson was arrested for possession of a controlled substance. His public defender told him he would be on probation for a year for that offense. However, he was also told he would not be released to begin probation until after he testified at appellant’s trial. He was specifically told he would have to go to court and tell the truth before he was released. Simpson understood that he would be in custody for contempt if he failed to testify about what happened. Simpson stated that he told the truth to the detectives, at the preliminary hearing and at both trials.
When deputies arrived at the crime scene shortly after the shooting, they found a partially open folding knife near Jones’s body. There were no fingerprints on the knife. The victim’s gray Malibu was parked facing against traffic; the driver’s door was open and the engine was running. There was a loaded shotgun, with the butt partly cut off, inside Jones’s vehicle. The shotgun was wrapped in a pillowcase.
Louis Pena, the pathologist, testified that Jones had suffered a total of five gunshot wounds. None of them entered the front of her body. The fatal wound was caused by a bullet that entered the back of her head, behind her ear. There was a second wound in Jones’s right arm, the result of a bullet which entered the back of her arm. Two other wounds were in her upper back. The fifth wound was in her upper left arm, caused by a bullet which entered the side of her arm. Pena found no stippling or soot on the body, indicating the gun which caused the wounds was not close when it was fired. The autopsy revealed the presence of the drug ecstasy.
Nicole Foster, a friend of Jones’s, testified that shortly before the shooting, at approximately 9:30 p.m., she heard appellant arguing with his mother, Rene Bishop. Foster overheard Bishop tell appellant to calm down. Appellant said he was going to “take care of [his] own business” and “handle it.” Appellant and his mother got into a red car and drove away. Prior to the incident, Foster had seen Bishop in possession of a knife similar to the one found by Jones’s body.
Appellant was arrested in Georgia. Interviewed by detectives, he admitted having argued with Jones and with his mother earlier in the day, but denied being present at the shooting or having anything to do with it. However, he reported a conversation with Monet Wade, his former girlfriend, in which Wade asked him why he “[went] crazy that day.” Appellant did not tell the detectives that he shot Jones in self-defense or that Jones was armed with a knife.
2. Defense Evidence
Monet Wade testified that she was a passenger in Jones’s car at the time of the shooting. Earlier in the day, she and Jones had driven to a liquor store and run into appellant. Appellant approached the car and asked Wade why she was not taking his calls. Jones screamed and cursed at him, calling him “Blood” and telling him to “get the fuck away from [her] car.” Appellant told Jones to mind her own business. Jones threatened appellant, saying: “Blood, I got hollows [referring to hollow-point bullets] for niggas like you.” Jones and Wade drove to Jones’s home, where Jones retrieved a shotgun from a bedroom closet. Jones, accompanied by Wade, drove to the home of a male friend, who helped Jones load the shotgun. Jones and Wade returned to Jones’s car, where Jones said she was going to shoot appellant for “disrespect[ing]” her. Wade observed a knife and some extra shells in Jones’s car.
Wade and Jones drove past appellant’s house and parked near the front of Simpson’s home. Jones hopped out of the car with the knife. Wade did not see appellant, but heard Jones say: “What’s up Blood?” in an aggressive tone of voice. Jones had the knife in her hand and was in a threatening stance. Wade heard a series of shots. She got out of the car and saw Jones lying on the ground. She did not see appellant or his car. Wade ran to Simpson’s porch and asked him what was going on. Simpson said he did not know. Wade called her cousin from a pay phone and left the scene with her cousin.
According to Wade, Jones was a gang member and a temperamental, violent person. Jones had been ingesting ecstasy, marijuana and alcohol that day. Wade had seen Jones go after someone with a gun before. After the incident, Wade moved to Texas because she was receiving threats based on rumors that she had set Jones up.
The defense also presented a photograph of Jones dressed in gang attire, flashing a gang sign.
Keni Michelle Odom Grier, Jones’s cousin who resided with Jones, testified that she observed Jones obtain a shotgun from Grier’s bedroom on the day of the incident and attempt to load it. Grier heard Jones say that Wade’s boyfriend had “disrespected” her and that she felt threatened.
On cross-examination by the prosecutor, Grier testified that she had never seen the knife found near Jones’s body.
C. Pertinent Jury Instructions and Argument
The trial court gave the jury the pattern instruction explaining the general principles of homicide (CALCRIM No. 500). The court also gave the instructions explaining the degrees of murder (CALCRIM No. 521), voluntary manslaughter arising from provocation (CALCRIM No. 570), and the concept of malice aforethought (CALCRIM No. 520). The defense requested and received the instructions on self-defense as a complete defense and voluntary manslaughter based upon imperfect self-defense (CALCRIM Nos. 505 and 571).
With respect to the distinction between first and second degree murder, the jury was instructed that “[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” (See CALCRIM No. 521.) The jury was specifically instructed, in accordance with CALCRIM No. 522, that “[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter.... [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.” With respect to the type of provocation that would reduce murder to manslaughter, the jury was told: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if one, the defendant was provoked; two, as a result of the provocation[,] the defendant acted [rashly] and under the influence of intense emotion that obscured his reasoning or judgment; and, three, the provocation would have caused a person of average disposition to act [rashly] and without due deliberation[,] that is[,] from passion rather than from judgment.... [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. [¶] Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. [¶] You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”
During closing argument, defense counsel explained in detail the defense’s theory that Jones’s death was the result of self-defense and then stated: “I’m not going to talk that much about murder because this is not a first-degree murder case. This is not second-degree murder.” He also asked the jury not to compromise: “It’s either first degree like the D.A. asked for, or it’s not guilty.” Neither the defense attorney nor the prosecutor talked about the role of provocation in reducing first degree murder to second degree murder or murder to manslaughter.
D. Verdict and Sentencing
The jury found appellant guilty of first degree murder and found all the firearm use allegations true. Appellant was sentenced to a term of 50 years to life -- 25 years to life for the murder and 25 years to life for the firearm enhancement.
DISCUSSION
A. Provocation Instructions
Whether provocation is “considerable enough to negate malice” is to be judged objectively. (People v. Steele (2002) 27 Cal.4th 1230, 1254.) “The law does not... permit defendant to use himself as the measure of what is adequate provocation to reduce what would otherwise be murder to manslaughter.” (Id. at p. 1255.) On the other hand, “whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder” is determined by a subjective test. (People v. Padilla (2002) 103 Cal.App.4th 675, 678; accord, People v. Valentine (1946) 28 Cal.2d 121, 131-135.) “‘The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.’” (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1296, quoting People v. Wickersham (1982) 32 Cal.3d 307, 329.)
Here, there was evidence of a quarrel between appellant and Jones immediately prior to the shooting. The jury was instructed in accordance with CALCRIM No. 522 that “[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter.” It was also instructed concerning the type of provocation necessary to reduce murder to manslaughter -- the type that would cause “a person of average disposition to act rashly and without due deliberation.” (See CALCRIM No. 570.) However, there was no specific instruction explaining that if the defendant was provoked but the provocation was insufficient to reduce the crime to manslaughter, it could still have a bearing on the degree of murder. Appellant contends the trial court erred by failing to give such instruction sua sponte. We disagree.
Respondent contends that appellant has forfeited this claim of instructional error. “The long-standing general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given.” (People v. Rundle (2008) 43 Cal.4th 76, 151, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390.) However, appellant here contends the instructions given affirmatively misled the jury concerning the level of provocation needed to reduce the crime to second degree murder and lowered the prosecution’s burden of proof. Such issues are cognizable on appeal notwithstanding the defendant’s failure to object or raise the issue below. (See, e.g., People v. Salcido (2008) 44 Cal.4th 93, 155 [where defendant claimed that CALJIC No. 2.02 “shift[ed] the burden of proof from the prosecution” and required defendant “to present a ‘reasonable’ defense to the prosecution’s case,” court entertained the claim on the merits despite failure to object at trial]; People v. Ramos (2008) 163 Cal.App.4th 1082, 1087 [“[W]e may review any instruction which affects the defendant’s ‘substantial rights,’ with or without a trial objection.”].)
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’ [Citations.]” (People v. Russell (2006) 144 Cal.App.4th 1415, 1424, quoting People v. Sedeno (1974) 10 Cal.3d 703, 715.) However, “[t]he judge is required to instruct only on general principles that are necessary for the jury’s understanding of the case; the judge need not instruct, without request, on specific points or special theories that might be applicable to the particular case.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 610, p. 869.) In the case of a pinpoint instruction -- “an instruction that relate[s] certain evidence to an element of the crime and attempt[s] to raise a reasonable doubt as to that element” (People v. Lee (1994) 28 Cal.App.4th 1724, 1734) -- such an instruction need not be given sua sponte, but must be specifically requested by the defense. (Ibid.; People v. Mayfield (1997) 14 Cal.4th 668, 778; People v. Saille (1991) 54 Cal.3d 1103, 1120.) Subjective provocation is not a defense to first degree murder, but evidence that the defendant was unreasonably provoked may create doubt concerning the existence of the elements of deliberation and premeditation. Accordingly, an instruction defining the type of provocation needed to reduce first degree to second degree is a pinpoint instruction, which need not be given sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878-879; People v. Lee, supra, 28 Cal.App.4th at pp. 1732-1734.)
The case of People v. Rogers, supra, 39 Cal.4th 826, is directly on point. There, the defendant, who had been convicted of first degree murder, asserted that the trial court erred in failing to instruct “that provocation inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to negate premeditation and deliberation, thus reducing the crime to second degree murder.” (Id. at pp. 877-878.) The defendant had not requested an instruction to that effect. The Supreme Court held that such instruction -- embodied at that time in CALJIC No. 8.73 -- was a pinpoint instruction because it “relates the evidence of provocation to the specific legal issue of premeditation and deliberation.” (People v. Rogers, supra, 39 Cal.4th at pp. 878-879.) Accordingly, it “need not be given on the court’s own motion.” (Id. at p. 879.)
CALJIC No. 8.73 provides: “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premedication.”
The court in Rogers addressed the specific question raised by appellant here: whether the manslaughter instruction, which discusses provocation in terms of the reasonableness standard, might have led the jury to erroneously believe that provocation inadequate to reduce murder to manslaughter was equally irrelevant to its consideration of the degree of murder. The court concluded: “[T]he standard manslaughter instruction is not misleading, because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder. Further, the manslaughter instruction does not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed.” (People v. Rogers, supra, 39 Cal.4th at p. 880.)
The jury here was given accurate instructions on murder and manslaughter. It was informed that provocation could reduce first degree murder to second degree murder and murder to manslaughter. It was further instructed that a decision to kill made rashly, impulsively or without careful consideration was not deliberate and premeditated. Defense counsel did not ask for a special instruction defining the type of provocation needed to reduce first degree murder to second degree murder or instructing the jury on the difference between provocation sufficient to reduce first degree murder to second degree murder and provocation sufficient to reduce murder to manslaughter. Nor did defense counsel argue to the jury -- as he was free to do under the instructions given -- that appellant had been unreasonably provoked by Jones, precluding formation of deliberation and premeditation. Instead, counsel urged the jury to disregard second degree murder -- and manslaughter -- and find that appellant had acted in self-defense. The fact that the court did not give a pinpoint instruction that appellant did not request covering a theory defense counsel did not wish the jury to consider was not error.
B. Coercion of Witnesses
Referring to the testimony of Gibbs and Simpson, appellant contends he was “denied due process” when “coerced and involuntary third party statements” and “trial testimony which was the fruit of the coercive pretrial interrogation” were introduced against him. He further contends he was deprived of the effective assistance of counsel because trial counsel failed to move to suppress or otherwise object to the testimony. We conclude the pretrial statements given by Gibbs and Simpson were not obtained under unduly coercive circumstances and that, in any event, there was no basis to exclude their trial testimony.
As respondent points out, a judgment cannot be reversed for the erroneous admission of evidence unless the evidence was objected to at trial or the subject of a timely motion to strike, and a party forfeits the issue of admissibility by failing to object or move to strike. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) Accordingly, we consider whether the testimony of Gibbs and Simpson was admissible only for purposes of determining competence and effectiveness of trial counsel.
1. Pretrial Interrogation of the Witnesses Was Not Unduly Coercive
Courts have recognized that pretrial statements obtained from witnesses by law enforcement authorities may be excluded if it appears that they resulted from unduly coercive interrogation methods. (See, e.g., People v. Douglas (1990) 50 Cal.3d 468, 497, disapproved in part on another ground in People v. Marshall (1990) 50 Cal.3d 907 [Mexican officials beat witness prior to obtaining statement implicating himself and defendant]; People v. Lee (2002) 95 Cal.App.4th 772, 781-785 [police obtained statement after falsely telling witness that he had been implicated in victim’s death by lie detector test and that if he did not name defendant, he would face murder charges himself].) “‘It is unthinkable that a statement obtained by torture or by other conduct belonging only in a police state should be admitted at the government’s behest in order to bolster its case.... [M]ethods offensive when used against an accused do not magically become any less so when exerted against a witness.’” (Clanton v. Cooper (10th Cir. 1997) 129 F.3d 1147, 1158, quoting LaFrance v. Bohlinger (1st Cir. 1974) 499 F.2d 29, 34.) Coerced information is “‘inherently unreliable.’” (People v. Badgett (1995) 10 Cal.4th 330, 347, quoting People v. Douglas, supra, 50 Cal.3d at p. 500.) Thus, “[t]he coerced testimony of a witness other than the accused is excluded in order to protect the defendant’s own federal due process right to a fair trial, and in particular, to ensure the reliability of testimony offered against him.” (People v. Boyer (2006) 38 Cal.4th 412, 444, italics deleted.)
“The statement of a... witness is coerced if it is the product of police conduct which overcomes the person’s free will.” (People v. Lee, supra, 95 Cal.App.4th at p. 782, fn. omitted.) In determining whether a person’s free will was overcome, a reviewing court looks at the totality of the circumstances, including the person’s age, sophistication, emotional state and prior experience with the criminal justice system, as well as whether the interrogation involved deception, threats or promises of leniency. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208-212; see also In re Walker (1974) 10 Cal.3d 764, 777.) “[W]hen a defendant seeks to exclude the allegedly involuntary testimony of a witness or co defendant, the defendant bears the burden of proving that the admitted statements were involuntarily obtained.” (People v. Douglas, supra, 50 Cal.3d at p. 500, italics deleted.)
The evidence does not support appellant’s contention that the pretrial interviews of Gibbs and Simpson were conducted in a coercive manner. Detectives told them they must tell the truth or face the consequences, including possibly prosecution or imprisonment for lying to law enforcement personnel, but did not urge them to implicate a particular person or to tell a particular version of the facts. (See People v. Douglas, supra, 50 Cal.3d at p. 502, fn. 7 [testimony is not “‘coerced’” merely because failure to testify renders witness subject to punishment by contempt].) Attempting to bring this case within the factual pattern found coercive in People v. Lee, supra, 95 Cal.App.4th 772, appellant contends that the detectives deceptively suggested that Gibbs and Simpson might be accused of the crime and implanted the idea of shifting blame to appellant. With respect to the first contention, appellant relies on Gibbs’s and Simpson’s testimony that during their interviews, detectives indicated they were “involved” in the crime. However, both Gibbs and Simpson explained elsewhere in their testimony that in their minds, getting “involved” meant coming to court to testify. Moreover, although Detective Ferguson apparently deceived Simpson by informing him that others, including appellant, had told the detectives that Simpson was present when the shooting occurred, this is a far cry from encouraging the witness to implicate appellant or face charges himself, as occurred in People v. Lee. “California courts have long recognized it is sometimes necessary to use deception to get at the truth.” (People v. Lee, supra, 95 Cal.App.4th at p. 785, fn. omitted.) “Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted.” (People v. Farnam (2002) 28 Cal.4th 107, 182.) We do not deem a statement to the effect that “Mr. X said you were there and saw what happened” to be an invitation to charge the named person with the crime. There is no evidence that the witness’s pretrial statements to authorities were coerced.
Gibbs testified that Detective Ferguson told him other people had said he was “there” and “involved.” On cross-examination, defense counsel asked Simpson if the detectives told him that he was “involved in this homicide” and if they indicated appellant had said he was “involved”; Simpson answered “yes” to both questions.
2. The Witnesses’ Trial Testimony Was Not the Product of Coercion
Assuming appellant could establish that the pretrial interview statements of Gibbs and Simpson were induced by unduly coercive interrogation techniques, appellant’s contention of inadequate assistance of counsel is based not on the introduction of pretrial statements -- none were admitted -- but on counsel’s failure to attempt to prevent the witnesses from testifying at trial. Appellant contends their trial testimony “was the fruit of the pretrial coercive interrogation and rendered the trial testimony similarly unreliable.” Appellant’s assumption that a witness’s trial testimony can be excluded merely because the witness’s earlier statements may have been the result of improper interrogation is incorrect.
“A claim that a witness’s [trial] testimony is coerced... cannot prevail simply on grounds that the testimony is the ‘fruit’ of some constitutional transgression against the witness. Instead, the defendant must demonstrate how such misconduct, if any, has directly impaired the free and voluntary nature of the anticipated testimony in the trial itself.” (People v. Boyer, supra, 38 Cal.4th at p. 444.) Emphasis on pretrial coercion “‘misperceives the limited nature of the exclusion recognized for coerced third party testimony. [Citation.]... [T]his exclusion necessarily focuses only on whether the evidence actually admitted was coerced.... [D]efendant can prevail on his suppression claim only if he can show that the trial testimony given by [the third party] was involuntary at the time it was given.’ [Citation.]” (People v. Badgett, supra, 10 Cal.4th at p. 347.) In other words, “[t]he purpose of exclusion of [coerced] evidence” is served “by focusing on the evidence to be presented at trial, and asking whether that evidence is made unreliable by ongoing coercion, rather than assuming that pressures that may have been brought to bear at an earlier point ordinarily will taint the witness’s testimony.” (Id. at pp. 347-348.)
In People v. Douglas, supra, 50 Cal.3d 468, where the witness had given a statement implicating the defendant only after he had been subjected to beatings while in custody in another country, the court explained why there was no basis for excluding his freely-offered trial testimony: “[The witness] was not subjected to any violence by United States authorities... [He] testified under a general grant of immunity, precluding use against him of any statements made in connection with his testimony. The immunity agreement was reached only after [the witness] consulted with counsel and after negotiations between counsel and the prosecution. The agreement required only that [he] testify truthfully as to his knowledge of the murders, and was not conditioned on consistency of his testimony with his earlier out-of-court statements, or on ultimate conviction of the defendant. [Citation.] Moreover, [the witness] testified under oath that his statements were made freely and voluntarily and were not compelled by the earlier statements that he made in Mexico.” (Id. p. 502, fn. omitted.) The court further noted that the witness’s trial testimony was subject to cross-examination and impeachment, and that defense counsel had “‘adequate tools’ with which to challenge the reliability of [the witness’s] testimony, being fully apprised of all the circumstances surrounding [his] earlier interrogation in Mexico.” (Id. at p. 503.)
The primary reason appellant gives for concluding that the trial testimony of Gibbs and Simpson was the result of coercion was that the witnesses were “wedded to the version of facts which they gave police before trial” and “risk[ed] prosecution if they told a different version at trial.” We see no basis for presuming that persons subjected to coercion will fail to to tell the truth under oath at trial. The published authorities are replete with examples of witnesses whose coerced statements were recanted at trial or the first opportunity. (See, e.g., People v. Lee, supra, 95 Cal.App.4th at p. 776; Clanton v. Cooper, supra, 129 F.3d at p. 1150; LaFrance v. Bohlinger, supra, 499 F.2d at p. 31; Bradford v. Johnson (E.D. Mich. 1972) 354 F.Supp. 1331, 1334 [witness recanted after trial, after being transferred from custody of law enforcement personnel who beat and tortured him].) Subjected to thorough cross-examination by defense counsel, neither Gibbs nor Simpson indicated that they were under duress or that their testimony under oath represented anything other than the truth. Appellant contends Gibbs’s disappearance prior to the second trial and Simpson’s attempt to evade testifying indicated they “were not anxious to stand by their prior statements.” To the contrary, these actions and their initial statements to deputies denying knowledge of the crime were indicative of fear of testifying truthfully and a desire to avoid implicating appellant.
The court also afforded defense counsel the opportunity to cross-examine Simpson on the subject of leniency promised by the prosecution or law enforcement personnel in connection with the drug possession charge.
Even in the situation where the defendant has established that an out-of-court statement of a third party was the product of improper coercion, “it [is not] the rule that the burden rests on the People to demonstrate that the taint of this statement was purged by the time the witness testified. Rather, a defendant must demonstrate that trial testimony following the coercion of a witness was actually tainted thereby.” (People v. Badgett, supra, 10 Cal.4th at p. 348.) Appellant points to no evidence from which we can conclude that Gibbs and Simpson were under pressure to lie at trial. Both testified that they had repeatedly been admonished by authorities to tell the truth and both said that they were telling the truth. That they stuck to the version of events related to authorities in their second interview despite numerous opportunities to disavow it, further supports the conclusion that their testimony at trial was not the product of coercion.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J. SUZUKAWA, J.