Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 203566
RUVOLO, P.J.
I.
Introduction
Appellant Jamal X. Butler was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a) ) and was found to have personally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d). Appellant was also found to be a felon in possession of a firearm (§ 12021, subd. (a)(1)). A court trial was held on the prior conviction allegations and appellant was found to have two prior serious felony convictions and two prior prison terms. (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c).) The court imposed a total sentence of 80 years to life in prison.
All statutory references are to the Penal Code.
On appeal, appellant claims error in the admissibility of a witness’s prior statement, two claims of ineffective assistance of counsel, error in denying a defense request to recall a witness, and error in denying appellant’s request to reopen his case during jury deliberations. We affirm.
II.
Facts and Procedural History
At approximately 7 a.m. on August 17, 2007, Allen Broussard was shot once in the back of the head at close range and killed near 69 Nichols Way in San Francisco, California. The prosecution’s chief witness was 48-year-old Deanna Johnson. She testified that early on August 17, 2007, she got out of bed and sat at her open bedroom window smoking a cigarette. She heard a gunshot and saw appellant running up a walkway ramp from Nichols Way to Doublerock Court, and then he was out of sight.
Johnson then heard someone beating on her front door. She thought it was the police. She woke up her 19-year-old son, Damian Bradley, who was in his bedroom. Bradley went downstairs and opened the front door with Johnson following behind him. Appellant, who was known by the nickname, “Junk, ” was standing there. Appellant used profanity and slang, and told Bradley that he had just killed someone, and he wanted Bradley to hold some items for him. The items were a “balled up” green and brown camouflage shirt with a gun and gloves sitting on top.
Johnson said that appellant looked like he needed sleep, was “hyper” and “bent up, ” and “crazed.” He bragged about what he had done and physically demonstrated how the murder victim, Allen Broussard “dropped” after being shot. Appellant claimed to have killed Broussard because he had broken into a relative’s home many years earlier and it was payback.
Johnson was angry that appellant was giving those items to her son, and she did not want her son to be “caught up in that mess.” Bradley checked to see if the gun was loaded and put everything on a closet shelf in the living room.
After appellant left, Johnson started “going off” on Bradley, telling him they could get evicted. She questioned why appellant left the murder weapon with Bradley when there were “hundreds” of places appellant could have taken the gun. Johnson told Bradley he had to call appellant and tell him to come get the gun.
Bradley called appellant, and Johnson heard Bradley say he could not keep the “stuff” because his “mom was trippin’.” Bradley put the items in a plastic grocery bag and appellant returned and retrieved them. Appellant was driving a burgundy and white car.
Cell phone records verified that at 8:16 a.m. a phone call was made from Bradley’s cell phone to a number listed for appellant.
Later on August 17, 2007, Johnson called the San Francisco Housing Authority’s “Tip Line, ” which could be used to anonymously report crimes committed in public housing. Johnson left three anonymous messages, and her recorded calls were played for the jury.
In the first call, Johnson stated she was calling about the murder on Nichols. She said that the guy who did the shooting was known as “Junk, ” and that he shot the victim in the head. She said she did not want to be involved but that “black on black killings gotta stop.” In the second call Johnson said that the shooter was “Junk, ” and that his real name was “Jamal” and his last name was not known. In the third call, Johnson said she had “kinda like [ ] witnessed it in a way, and [unintelligible] running around. His nickname is Junk. His real name is Jamal and he has dreads.” She added that he “straight up” shot that guy.
On August 20, 2007, Johnson made an anonymous call to homicide inspector Militello of the San Francisco Police Department and said that appellant had killed a man and then bragged about it. Johnson also said that she feared for her safety.
On August 22, 2007, Johnson learned that the police had searched her apartment and that narcotics had been found. That same day, Johnson went to the police station and was interviewed by inspectors Militello and Jones. She testified she revealed her identity because appellant left a murder weapon in her house, appellant did not care about her family, and she did not want her son to be arrested.
Bradley was an uncooperative witness for the prosecution and was examined under a grant of immunity. He testified that on August 17, 2007, appellant knocked on his door and said that something happened around the corner and that a lot of police were there. Bradley described appellant as acting “regular.” Bradley testified that appellant did not bring a gun to his house on August 17, 2007.
Bradley was asked about his November 28, 2007 interview with homicide inspectors at 850 Bryant Street. By way of background, Bradley had agreed to go with his mother, Johnson, to the Hall of Justice on November 28, 2007, and speak to homicide investigators, but changed his mind. Johnson called inspector Kevin Jones, hysterical and crying. She told him that her son was refusing to accompany her to the Hall of Justice and that he had called her a snitch and pushed her. Bradley told her that Junk was going to kill her or have her killed. Bradley was ultimately taken into custody for threatening his mother. While in police custody, he was interviewed and gave a statement to the police.
A videotape of the November 28, 2007 interview was played for the jury. Bradley said that if he talked to the inspectors then his “name can’t come up, ” because people get killed over “this shit.” He said he would be truthful, but he could “not put [his] name” on documents and was not going to court to testify.
During his statement to the interrogating officers, Bradley described essentially the same version of the events of the morning of August 17, 2007, as was described by Johnson in her trial testimony. He recalled that when appellant came to the door on August 17, 2007, he was knocking so hard that Bradley’s mother thought it was the police. When asked about holding the murder weapon, Bradley said, “I don’t know nothing. I was holding it against my will. I don’t do anything... I don’t want to come out.” Bradley stated, “He came through the door. I went to the door. And I put it in the... and I put it in the closet. And my mama seen it, and she said it had to go. So he had to come back and get it.” Appellant had handed Bradley a gun that was wrapped up in a jacket that was two shades of green. Bradley stated that appellant “was laughing and shit.” Bradley stated that appellant did not say “in a exact ways” what he had done but “you can picture.” Appellant told Bradley, “ ‘Make sure nobody touch that gun’.” Bradley understood that his mother did not want the gun in the house and said, “Yeah, I wouldn’t either. Who would be dumb enough to want that in their house, ” commenting “ ‘Oh. Come put a murder weapon in my house, please.’ ”
Bradley told the officers that his mother was urging him to go to court and testify in this case, but he did not want to get involved because he could get killed. One of the investigating officers told Bradley about the witness protection program and relocation, but Bradley rejected this because he still wanted to be able to visit family in San Francisco. He wished he could help the investigators out, but he did not trust the witness protection program.
At trial, Bradley explained that he gave the November 28, 2007 statement to the investigating officers because they threatened him and lied to him. Specifically, Bradley was told he would be locked up and would not see his critically ill infant son “one last time” before he passed away.
III.
DISCUSSION
A. Admission of Johnson’s August 22, 2007 Statement to the Police
Appellant first claims that the trial court erred by allowing into evidence Johnson’s August 22, 2007 recorded interview with the police. The statement was consistent with her trial testimony, and was admitted as a prior consistent statement under Evidence Code section 791, subdivision (b), after defense counsel impugned Johnson’s trial testimony by suggesting she had a motive to fabricate testimony against appellant. Appellant argues that this evidence was improperly admitted because, contrary to the requirements of the Evidence Code, the statement was not made “before [any] bias, motive for fabrication, or other improper motive is alleged to have arisen.”
A prior consistent statement by a testifying witness is admissible if: “[a]n express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” (Evid. Code, § 791, subd. (b).) Such evidence is not barred by the hearsay rule. (Evid. Code, § 1236.)
In admitting this evidence, the court accepted the prosecutor’s argument that defense counsel had implied through his cross-examination that Johnson had fabricated her trial testimony in order to obtain the police department’s assistance with resisting her impending eviction from her public housing unit. The prosecutor argued that since Johnson’s August 22, 2007 statement to the police predated the notice of eviction, which was issued on November 20, 2007, Johnson’s statement to the police was given before the supposed motive to lie arose.
On appeal, appellant claims that Johnson’s August 22, 2007 statement was not admissible under Evidence Code section 791, subdivision (b), because Johnson already had another motive to fabricate evidence when she made the statement to the police. Appellant points out that earlier on the same day Johnson gave her statement to the police, her home had been searched and drugs had been found, prompting her to reveal her identity to police and come forward to accuse appellant of Broussard’s murder so that her son would not be charged with possession of drugs. Consequently, appellant claims that “[t]here is no support in the record for the theory relied upon by the trial court for admission of the prior consistent statement, and the court erred in admitting it.”
We disagree. As the trial court noted in its ruling, defense counsel cross-examined Johnson regarding her eviction from public housing and implied that she was testifying for the prosecution because she wanted the police to assist her in resisting eviction. At the beginning of the cross-examination, Johnson was asked if she received a notice of eviction for drug activity at her residence. Johnson acknowledged that drugs had been found in her home. Johnson was asked if she sought help from the district attorney’s office from being evicted, to which she replied, “yes.” Johnson was asked if the district attorney either prevented Johnson from being evicted or helped her from being evicted, to which Johnson replied, “no, ” although she stated that she had believed at one time that this was possible. At trial, Johnson admitted she was still in her apartment and that she was “fighting the eviction.”
Clearly, another possible motive for Johnson revealing her identity and giving a statement to the police on August 22, 2007, was to curry favor with the police because she did not want her son to be charged with possession of drugs as a result of a search of her home earlier that day. During closing argument, defense counsel argued both motives for Johnson fabricating testimony against appellant.
When, as here, a witness’s testimony may have been influenced by multiple biases or motives to fabricate, the issue appellant raises is whether a prior consistent statement is admissible if it is made before the existence of any one of the alleged biases or motives to fabricate or only if made before the existence of all such biases and motives. This issue was addressed by the California Supreme Court in People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse). The court ruled that a “prior consistent statement logically bolsters a witness’s credibility whenever it predates any motive to lie, not just when it predates all possible motives. Accordingly, under Evidence Code section 791, ‘a prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness’s testimony.’ [Citation.]” (Id. at p. 492, original italics; accord, People v. Jones (2003) 30 Cal.4th 1084, 1106-1107; People v. Hayes (1990) 52 Cal.3d 577, 609.)
Thus, our Supreme Court has repeatedly held that a prior consistent statement is admissible when it is given prior to “any one” of the motives that the opposing party has expressly or impliedly suggested may have influenced the witness’s testimony. (Hillhouse, supra, 27 Cal.4th at p. 492 .) Because defense counsel suggested Johnson’s trial testimony was being fabricated because of her desire to avoid eviction, Johnson’s August 22, 2007, statement to the police was properly admitted into evidence because it predated her eviction notice on November 20, 2007.
B. Ineffective Assistance of Defense Counsel
Appellant claims even if Johnson’s August 22, 2007 statement to the police was properly admitted, his counsel rendered ineffective assistance by not objecting to a statement made by Johnson as part of that interview. During Johnson’s interview, she referred to appellant and stated: “He bragged about that not being the only person he killed [and] he said something like, that’s number, that’s number three on a notch, you know [unintelligible] he’s bragging.”
Before a tape recording of an interrogation is played to the jury, the tape should first be edited to remove material that is either inadmissible or would unfairly prejudice the defense. (See, e.g., People v. Sanders (1977) 75 Cal.App.3d 501, 507-508.) However, appellant’s counsel did not isolate or identify this portion of Johnson’s interview with the police and seek to excise it so it would have not been presented to the jury. (See Evid . Code, § 352.) Rather, defense counsel made one blanket objection to admissibility of the interview, claiming that it did not qualify as a prior consistent statement under Evidence Code section 791, subdivision (b). Nevertheless, after Johnson’s statement was played for the jury, defense counsel unsuccessfully moved for a mistrial on grounds that evidence about other murders “should never have gone to the jury.” Appellant claims this belated objection was too little, too late and that his counsel was ineffective because he failed to get a trial court ruling redacting this inflammatory portion of the interview before it was heard by the jury.
“When an attorney fails to object to inadmissible, damaging evidence, the reviewing court is called upon to sift the record to ascertain the relative incriminatory effect of the failure to object.” (People v. Sundlee (1977) 70 Cal.App.3d 477, 482.) If it is reasonably probable that appellant would have achieved a more favorable result at trial if counsel had moved to exclude the damaging evidence, reversal of the judgment is required. (Strickland v. Washington (1984) 466 U.S. 668, 694-695 (Strickland); People v. Fosselman (1983) 33 Cal.3d 572, 584.)
Appellant claims this case is indistinguishable from People v. Guizar (1986) 180 Cal.App.3d 487, and “the damaging effect of the evidence” requires reversal. In Guizar, the appellate court reviewed a first-degree murder conviction in which a witness gave a recorded statement, stating his belief that the defendant had committed other murders. The tape and an 18-page transcript were admitted in evidence. In considering Guizar’s contention that his counsel rendered ineffective assistance, the court made clear that defense counsel should have requested that the tape and transcript be edited to eliminate the reference to other murders. The court wrote: “It is inconceivable to us that a defense attorney would make a tactical decision to admit evidence that a defendant, on trial for murder, had committed other murders in the past.” (Id. at p. 492, fn. 3.) The court found that the admission of this portion of this tape “was plainly error” and that it was “reasonably probable that a jury whose deliberations were not tainted by speculation about whether Guizar had, in fact, committed prior murders, could have found Guizar guilty of less than first degree murder.” (Id. at p. 492.)
In light of Guizar, we agree with appellant that there could have been no reasonable basis to forego seeking a redaction of Johnson’s statement about appellant bragging about committing other murders. However, we agree with respondent that counsel’s omission does not compel reversal because we do not consider it reasonably probable that the jury would have reached a more favorable verdict had defense counsel made a timely objection and the statement had been excised from Johnson’s statement.
We believe the strength of the evidence concerning appellant’s involvement in the subject crime reduced the potential that the jury based its verdict on its knowledge that appellant had bragged about committing other murders. The veracity of Johnson’s trial testimony was significantly bolstered by the number of times she gave out-of-court statements to authorities matching her trial testimony and identifying appellant as Broussard’s murderer. Additionally, Johnson’s version of the events at trial was corroborated in every significant detail by her son’s recorded statements to the police given a few months after the murder.
Moreover, unlike in Guizar, where the prosecutor encouraged the jury to use the “ ‘other murders’ ” statement in their deliberations, nothing in this record suggests that this portion of Johnson’s statement was even mentioned during the prosecution’s closing argument. (Guizar, supra, 180 Cal.App.3d at p. 490.) Most importantly, in Guizar the defendant was found guilty of first degree murder, leading the court to wonder whether a jury “whose deliberations were not tainted by speculation” about defendant’s participation in other murders would have returned a lesser verdict. (Id. at p. 492.) In calculating the impact of the improper statement in the instant case, we note that appellant was acquitted of first degree murder and found guilty of second degree murder. Therefore, in our case, it can safely be presumed that any error in failing to object to Johnson’s statement that appellant had bragged about committing other murders did not affect the jury’s verdict. Accordingly, appellant has failed to show, as required under the second prong of the Strickland test, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)
C. Recalling Johnson For Further Cross-Examination
Appellant next claims that admitting Johnson’s August 22, 2007 out-of-court statement to law enforcement officers without providing appellant an opportunity to recall Johnson as a witness and cross-examine her on the contents of that statement, was an abuse of the trial court’s discretion and violated appellant’s constitutional right to confront the witnesses testifying against him.
Specifically, in advancing this argument, appellant relies on Evidence Code section 778, which provides: “After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court’s discretion.” Appellant further relies upon the confrontation clauses of both the federal and state Constitutions, which guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)
Following the introduction of Johnson’s August 22, 2007 statement into evidence, defense counsel requested permission to recall Johnson for further cross-examination. Although Johnson had been excused, she was subject to recall. Appellant specifically argued that under Crawford v. Washington (2004) 541 U.S. 36, 59, it would violate his federal constitutional right to confrontation for the court to deny his request to recall Johnson. The court refused the request, stating that counsel had the opportunity to cross-examine Johnson about her August 22, 2007 statement to the police while she was previously on the stand and was now bound by his choice not to do so. Later in the hearing, appellant attempted to call Johnson as his own witness. However, she refused to honor the subpoena.
While it is clear that the Evidence Code allows a party to recall and reexamine a witness, the decision to allow such recall rests within the discretion of the trial court. (See Evid. Code, §§ 778, 774.) At the same time, any exercise of discretion that fails to give proper weight to the rights guaranteed a criminal defendant under the Sixth Amendment is constitutionally invalid. (Olden v. Kentucky (1988) 488 U.S. 227, 231.)
We find that the trial court did not abuse its discretion, nor did it violate appellant’s right to confront adverse witnesses, when it denied appellant’s request to recall Johnson as a witness. First, at the time appellant initially cross-examined Johnson, he had access to Johnson’s August 22, 2007 out-of-court statement to law enforcement officers, and he had an opportunity to question Johnson on cross-examination regarding her statements to the police but chose not to do so. Secondly, Johnson’s August 22, 2007 statement to the police was essentially consistent with the testimony she gave at trial, which was the basis for its admission. After giving her trial testimony, Johnson was vigorously and thoroughly cross-examined about many factors that would potentially impact her credibility, including her prosecutorial bias, her motives to lie, her poor memory, her poor vision, her poor mental health, her drug addiction, and her prior criminal conviction for attempted robbery in 2005. Appellant failed to make an offer of proof as to what further testimony appellant expected to elicit from Johnson if she were recalled. As a result, we find that respondent failed to demonstrate an abuse of the judge’s exercise of discretion in denying his request to recall Johnson. (See People v. Raven (1955) 44 Cal.2d 523, 525-526 [sufficient offer of proof was made to allow determination that trial court prejudicially erred in exercising discretion not to recall witness].)
We further conclude that the trial court’s refusal to allow the defense to recall Johnson for further examination did not violate appellant’s constitutional right to confront adverse witnesses. There is no question, as appellant points out, that cross-examination is the keystone to the right to confrontation “and an essential safeguard of a fair trial.” (People v. Brock (1985) 38 Cal.3d 180, 189.) “Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ [Citation.]” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) In other words, “ ‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; accord People v. Carter (2005) 36 Cal.4th 1114, 1172.)
D. Ineffective Assistance of Defense Counsel
Appellant next contends his trial counsel rendered ineffective assistance by failing to object to the admission of portions of Bradley’s recorded interview with the police on Evidence Code section 352 grounds. By way of background, the jury was allowed to consider a videotaped police interview of Bradley in which he made statements that were inconsistent with his trial testimony. Appellant claims his counsel provided prejudicially ineffective assistance of counsel in this regard because his counsel did not seek to have the videotape and transcript of Bradley’s interview with police redacted to “eliminate [the police officers’] repeated vouching for other witnesses and references to the other ‘evidence’ not introduced before the jury.”
On appeal appellant acknowledges that his defense counsel “vigorously attempted to exclude” the admission of Bradley’s statement to the police on the grounds that it was hearsay. However, the court admitted the videotaped interview into evidence, over counsel’s hearsay objection, as a prior inconsistent statement. (Evid. Code, § 1235.) The differences between Bradley’s trial testimony and his prior statements to the police justified the court’s ruling, and appellant does not claim otherwise. For example, Bradley claimed at trial that appellant did not come to his door with a gun on August 17, 2007. By contrast, during the police interview, Bradley stated that appellant had a gun, that appellant gave the gun to Bradley and expected Bradley to keep it hidden for him. On appeal, appellant now claims that his counsel argued the motion on the wrong grounds and that counsel should have objected under Evidence Code section 352 to “objectionable statements” made by the officers during the interrogation.
According to appellant, the “objectionable statements” made by the interrogating officers “basically fall into two categories: (1) improper vouching for witness Johnson in the form of opinions by the [officers] that they believed that she was telling the truth...; and (2) allusions to ‘other evidence’ that existed to support the case against appellant[, ]” who they believed was guilty.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Appellant argues that “[h]ad the proper objection been made under section 352, the court would have been required to exercise discretion, weigh the probative value of the inspector’s statements against the danger of undue prejudice, and exclude the portions” that improperly bolstered the case against appellant. He contends that the improperly admitted evidence prejudiced him.
Generally, “[a]n attorney may choose not to object [to proffered evidence] for many reasons, and the failure to object rarely establish ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540; accord, People v. Lewis (2001) 25 Cal.4th 610, 678; People v. Avena (1996) 13 Cal.4th 394, 444-445.) More importantly, “[t]he failure to object to admissible evidence does not constitute ineffective assistance of counsel when to do so would have been futile. [Citations.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 934-935.)
Under the circumstances, counsel reasonably could have concluded that an Evidence Code section 352 objection would have been overruled. The prosecutor sought admission of the entire videotape of Bradley’s police interrogation after Bradley testified that the incriminating statement he made against appellant was the result of the officers’ coercive interviewing tactics. Specifically, he claimed he was threatened with imprisonment and, further, at the time of interrogation, was made to understand that lack of cooperation could result in separation from his son, who was newly born and seriously ill. He testified that he would have said anything just to see his child.
Here, the video recording of the entire interview was highly probative because it provided the jury with an opportunity to observe Bradley’s demeanor and responses during the interview to evaluate his claim that his incriminating statements were the result of police coercion. It would have been very difficult to edit the tape recording by excising the statements appellant complains about on appeal without seriously harming the coherence and tenor of the interview. As the trial court noted, if portions of the taped interview were deleted, it would leave room for speculation as to whether any threats might have occurred during the missing portions.
Even if appellant’s counsel had no valid tactical reason for failing to object on Evidence Code section 352 grounds, appellant’s ineffective assistance of counsel claim must be rejected because he has failed to demonstrate a reasonable probability the outcome of his trial would have been different in the absence of his counsel’s omissions. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Any prejudice that may have arisen from the admission of the complete, unedited videotape of the police interview was cured by an admonition the court gave to the jury that the questions and comments of the police officers were not evidence and that they were only to consider Bradley’s answers as evidence. We are entitled to presume the jury followed this instruction. (People v. Holt (1997) 15 Cal.4th 619, 662.) Consequently, appellant simply cannot show that there is a reasonable probability that if counsel had lodged the Evidence Code section 352 objection the result of the proceeding would have been different. Therefore, on this record, appellant has failed to carry his burden to demonstrate the ineffective assistance of his counsel.
E. Court’s Refusal to Reopen Case During Jury Deliberations
As his final argument, appellant claims that the trial court abused its discretion when it denied his motion to reopen the case during jury deliberations in order to question Johnson about a voicemail message she left on defense counsel’s answering machine recanting her trial testimony and disavowing her identification of appellant as the perpetrator. The facts underlying this contention are as follows:
On Monday, April 28, 2008, the defense presented its case. On that same day, at approximately 11:00 a.m., Johnson left a voicemail message for defense counsel claiming that she “made a mistake” in identifying appellant as the murderer. However, defense counsel did not retrieve that voicemail message until May 1, 2008.
The full text of Johnson’s message states: “Hi, Mr. Andrews. Hi. I’m calling for the wit, Jamal Butler. Ah, this is Deanna Johnson calling. I want to leave a message. Um, I, I think I, I made a vital, a vital mistake. Um, I had too many things in my head at one time. Um I, I might a made a mistake in naming Jamal. Um. It wasn’t Jamal that I saw. I looked out my window [ ] the other day and saw the same guy and I knew it couldn’t have been Jamal, so I made a mistake. There was too many things going on in my head at one time... maybe my medication made me too high or somethin [sic], I don’t know. Please forgive me. Bye.”
In the meantime, on April 29, 2008, all closing arguments were presented to the jury and the jury commenced deliberations later that day. The jury deliberated the entire day on April 30, 2008, and the entire day on May 1, 2008. Defense counsel notified the prosecutor at 4:00 p.m. on May 2, 2008, regarding Johnson’s voicemail message. He had the message copied and provided it to the prosecutor.
One of the investigating police officers in this case went to Johnson’s house on May 3, 2008, and attempted to interview her but she was not there. The next day, the officer received a telephone call from Johnson. She said that the information she had left on defense counsel’s phone was not truthful, and she gave it out of hope that appellant’s family would “essentially leave her alone.”
Defense counsel informed the court about Johnson’s voicemail message on Monday, May 5, 2008, the jury’s fourth day of deliberations. At that point, defense counsel moved the court to reopen the case in order to cross-examine Johnson or, in the alternative, argued for a mistrial. Both motions were denied. On May 6, 2008, the jury returned its verdict.
On appeal, appellant claims the trial court erred in denying his motion to reopen the case because he was denied the benefit of the jury determining the validity of Johnson’s recantation. A trial court has broad discretion to order a case reopened for the introduction of additional evidence. (People v. Cuccia (2002) 97 Cal.App.4th 785, 792.) Among the factors to be considered are (1) the stage of the proceedings when the motion is made, (2) the moving party’s diligence in presenting the new evidence, (3) the risk that the jury might accord the new evidence undue emphasis, and (4) the significance of the evidence. (People v. Jones (2003) 30 Cal.4th 1084, 1110.)
Here, the late stage of the proceedings, and the suspicious nature of Johnson’s recantation of her trial testimony, both compel the conclusion that the court did not err in refusing appellant’s request to reopen the case to further explore Johnson’s credibility. The jury was in its fourth day of deliberations when defense counsel requested that the court reopen testimony. Permitting defense counsel to recall Johnson for further testimony and cross-examination would have disrupted the jury’s deliberations in order to consider evidence of dubious significance.
Courts view a witness’s recantation of trial testimony as exceedingly unreliable and untrustworthy. (Dobbert v. Wainwright (1984) 468 U.S. 1231, 1233-1234 [recantations upset “society’s interest in the finality of convictions, ” and are “very often unreliable and given for suspect motives”].) While all recantations are viewed with some degree of skepticism, recantations that are later repudiated are viewed with markedly heightened mistrust. “We will not disturb the jury’s verdict based upon a recantation that must be viewed with suspicion and was subsequently disavowed....” (In re Roberts (2003) 29 Cal.4th 726, 742-743; see also In re Cox (2003) 30 Cal.4th 974, 998-999.)
In the instant case, Johnson’s unsworn and repudiated recantation was properly viewed with great suspicion. Indeed Johnson’s motive for putting the voicemail message on defense counsel’s answering machine was clarified when she later was interviewed by the police and completely disavowed her recantation. Specifically Johnson told the police that she made the phone call to defense counsel out of fear and pressure from appellant’s family. She told inspector Jones that the mother of one of appellant’s children confronted Johnson after Johnson testified. In addition, Johnson told inspector Jones that she learned through a family member that her life was in danger after her testimony. In view of the reasons that Johnson gave for her momentary recantation, it is important to note that Johnson testified that her own son, Bradley, had warned her that appellant might have her killed if she went to the police and implicated him in Broussard’s murder.
This case embodies many of the same factual features that led the court in People v. Meza (1981)116 Cal.App.3d 988, to find that the trial court acted well within its discretion in denying appellant’s motion to reopen the proceedings. In Meza, the trial court refused to reopen the case after final argument, but before the case had been submitted to the jury, to allow testimony that a prosecution witness had admitted to a prospective witness that she had perjured herself in order to obtain revenge on the defendant. (Id. at p. 995.) No abuse of discretion was found in refusing to reopen the case to consider whether this prosecution witness had given false testimony. The court noted that the trial testimony given by the prosecution witness was contradicted by other evidence; she had admitted facts weakening her credibility, including suggesting she wished to retaliate against the defendant; and “the jury in this case had before it sufficient information concerning [the witness’] veracity adequately to pass upon the weight to be accorded her testimony.” (Id. at pp. 995-996.)
Thus, Meza instructs that a claim of error respecting the right to reopen a case to show that there has been perjured testimony must be evaluated in light of whether or not this new evidence might influence the jury’s decision. In this case, Johnson’s testimony was subjected to thorough cross-examination and every reason she might have had to give false testimony was thoroughly explored. Furthermore, Johnson’s credibility was bolstered by the out-of-court statement of her son, who corroborated Johnson on critical points. Furthermore, the inherent believability of Johnson’s recantation of her trial testimony was severely undermined by her subsequent repudiation, claiming that the recantation was the result of threats, pressure and intimidation by people associated with appellant in the community. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion to reopen this case to further explore Johnson’s credibility.
IV.
Disposition
The judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.