Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05NF1776 Gary S. Paer, Judge.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
Upon being convicted of assault with a firearm and felony false imprisonment, appellant was sentenced to six years in prison. He contends instructional error and prosecutorial misconduct combined to deny him a fair trial. We disagree and affirm the judgment.
FACTS
A couple of days after loaning Javara Edwards $100, appellant called Edwards and asked him if he wanted to go for a ride. Edwards agreed, and a short while later, appellant picked him up at his house. Appellant was driving, and three other people were in his vehicle, including a man known as “Psycho.”
They drove to a house in which there were several other people. Edwards entered the house first, with appellant and Psycho behind him. As they passed through the front door, Edwards felt a gun barrel at the back of his head as people started grabbing him. Although it was dark, he could see Psycho had a machine gun and someone else had a Taser gun. Edwards tried to resist, but appellant hit him in the mouth with a pistol handle. Then someone started choking him and he passed out for a couple of minutes. When he came to, he was tied up in the bedroom and his captors were leaving the house. After they did, he wiggled free and ran to a gas station for help.
At the time of trial, Edwards was in custody on an unrelated matter. He testified under a grant of immunity and admitted he hoped to receive favorable treatment in his case in exchange for his testimony.
I
Appellant contends the court should have instructed the jury that the testimony of an in-custody informant should be viewed with caution. (See CALCRIM No. 336.) However, because appellant did not request the instruction, the court was not obliged to give it. (People v. Horning (2004) 34 Cal.4th 871, 909.) Moreover, the instruction was inapt in this case.
An in-custody informant is someone “other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.” (Pen. Code, § 1127a, subd. (a), italics added; accord, CALCRIM No. 336.) Because Edwards testified as a percipient witness and his testimony was based on statements made by appellant while they were both out of custody, Edwards did not qualify as an in-custody informant. Therefore, the court was not required to give CALCRIM No. 336.
Given this conclusion, we likewise reject appellant’s suggestion his attorney was ineffective for not requesting the instruction. (See People v. Frye (1998) 18 Cal.4th 894, 985 [attorney’s failure to make meritless requests does not render him ineffective].)
II
Appellant also contends the court erred in failing to give full and proper instructions on the issue of Edwards’ immunity. The court did instruct the jury that a factor in deciding a witness’s credibility is whether he or she is testifying under a grant of immunity. (CALCRIM No. 226.) However, appellant maintains the court also should have explained what immunity is and told the jury to view an immunized witness’s testimony with caution.
Again, appellant has effectively waived this issue by failing to raise it at the time of trial. “‘If [he] thought the [immunity instruction] needed additional clarification or explanation, [he] should have “requested appropriate clarifying or amplifying language” [citation]; absent such a request, [his] point is not preserved for appellate review.’” (People v. Horning, supra, 34 Cal.4th at p. 909.)
What’s more, appellant provides no authority for his position the trial court’s instructions on immunity were inadequate. And there is authority for the opposite conclusion. In People v. Echevarria (1992) 11 Cal.App.4th 444, the court ruled instructing the jury that immunity is a factor bearing on a witness’s credibility is a sufficient way to alert jurors that the witness has a specific bias and self-interest that may affect his testimony. (Id. at pp. 449-451.) We agree with Echevarria and reject appellant’s claim to the contrary. No instructional error has been shown.
III
Next, appellant contends the prosecutor engaged in misconduct by implying he had threatened Edwards. We find the contention has been waived, and defense counsel was not ineffective for failing to preserve it.
On direct examination, Edwards said he wasn’t keen about testifying in this case. In fact, he admitted that on the second day of the preliminary hearing, he did not show up for court because “it just didn’t fell right.” However, he said he had no reason to believe appellant was going to try to harm him.
On redirect, Edwards said he was afraid at the preliminary hearing, but he did not say why. The prosecutor then asked him if appellant was out of custody at the time of the hearing, if appellant knew where he lived, and if appellant knew where his mother lived. After Edwards answered these questions in the affirmative, the prosecutor asked him, “and so [on the second day of the hearing] you didn’t come back [to court]?” Edwards answered yes.
The Attorney General claims this line of questioning was not designed to imply appellant had threatened Edwards, but to explain why Edwards did not return to court on the second day of the preliminary hearing. But this is a gossamer distinction. The questioning implied Edwards did not return to court because he feared appellant was going to harm him or his mother, and there was no evidence appellant ever threatened, or even thought, as much. Indeed, Edwards testified that, other than the underlying crime, he did not have any reason to fear appellant was going to harm him. Therefore, it was improper for the prosecutor to imply otherwise. (See People v. Terry (1962) 57 Cal.2d 538, 566 [the mere opportunity to attempt to influence a witness is an insufficient basis to impugn the defendant].)
However, appellant never objected to the implication, which could have been cured by prompt admonishment. Therefore, the issue has been waived. (People v. Cole (2004) 33 Cal.4th 1158, 1201-1202.) Alternatively, appellant claims his attorney was ineffective for failing to preserve the issue, but to prevail on this claim appellant must prove “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Appellant has failed to carry his burden in this regard. The prosecutor’s line of questioning and the improper implication it created was mitigated by Edwards’ statement that he did not have any reason to believe appellant was going to harm him. There was, as we’ve mentioned, no evidence appellant ever actually threatened Edwards in any way. But there was considerable evidence implicating appellant in the crimes for which he was convicted. His fingerprints and car were found at the scene, and there was plenty of physical evidence — including the presence of blood stains in the house and the recovery of two guns in the backyard — that the crimes went down just as Edwards described them, with appellant fully involved.
Considering the threat evidence as a whole, as well as the strength of the evidence against appellant, we do not believe there is a reasonable probability he would have achieved a better result if his attorney had registered a timely objection to the prosecutor’s questions. Because of our confidence in the outcome, we reject appellant’s claim his attorney was ineffective.
IV
Lastly, appellant maintains cumulative error compels reversal, but the only error we have detected is the prosecutor’s improper implication Edwards suspected appellant was going to try to harm him if he testified. That error, as explained above, is not sufficient to undermine our confidence in the verdict. Appellant has not proven the error was prejudicial or violated his right to a fair trial.
The judgment is affirmed.
WE CONCUR: O’LEARY, J. ARONSON, J.