Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles YA073442-01 Stuart M. Rice, Judge
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Luis Joseph Chavez appeals from judgment after conviction by jury of robbery for the benefit of a criminal street gang (Pen. Code, §§ 211, 186.22, subd. (b)(1)); first degree burglary for the benefit of a criminal street gang, with personal use of a firearm (§§ 459, 186.22, subd. (b)(1), 12022.5, subd. (a)); criminal threats for the benefit of a criminal street gang, with personal use of a firearm (§§ 422, 186.22, subd. (b)(1); 12022.5, subd. (a)); and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found true allegations that a principal personally used a firearm in commission of each count. (§ 12022.53, subds. (b) & (e)(1).) The trial court found true allegations that appellant served two prior prison terms. (§ 667.5). It sentenced appellant to an aggregate term of 26 years in state prison.
Appellant contends that the trial court erred because it (1) declared a witness to be unavailable before it had kept her in jail long enough to coerce her testimony, (2) gave conflicting instructions about accomplice testimony, and (3) denied a motion for new trial based on prosecutorial misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and his uncle are members of the Gardena 13 criminal street gang. Appellant has gang related tattoos on his body, including a "G" on his left hand, "Gardena" on his neck, "G-13" on his right shin, and "M, " "D, " "S" on his left shin.
Late one night in a hotel room inside Gardena's gang territory, Corina Armenta and her family were robbed. A young woman came to the door. When Armenta opened it, a man with a shotgun pushed his way in. The man's face was covered with a bandana and his head was covered with a green baseball cap under the hood of a sweatshirt. He demanded Vicodin, threatened to shoot Armenta's husband, and said, "If you are smart, bitch, this is my neighborhood and I'll be back." Because he was wearing green, Armenta understood him to be "saying Gardena." She gave him some prescription pain medicine.
She testified at trial that he may have said, "You are in my vario." "This is my town."
Armenta's husband and daughter saw the man and woman leave in a white Mercedes. Another car was with them. The driver of the other car had big ears, according to Armenta's daughter. Armenta called 9-1-1 and relayed the information about the robbery and the white car. She told the 9-1-1 operator that she had never seen the robbers before.
Investigation
Police arrived and interviewed Armenta and her family. Armenta said the man wore shorts and she could see a tattoo on his right "shin calf area." The tattoo was a large letter. Her husband said the robber was Hispanic and about 22 to 23 years old. Her son described him as light skinned and in this 20's. Appellant was about 30 years old.
On the same night, officers took Armenta and her daughter to see two suspects. They did not identify either man as the robber. The men, Jose Cuevas (Squirrel) and Luis Navarro (Dumbo), were known members of the Gardena's street gang and were associated with a white Mercedes. Navarro had big ears and Armenta's daughter thought he might be the driver of the rear car. Cuevas had a "G" tattooed on his right shin. Armenta's daughter said it matched the robber's tattoo. She told police that the other man's clothing matched that of the man who robbed them.
The men were arrested on suspicion of the robbery, but later released. None of the victims could identify Cuevas as the robber from a photographic lineup.
Police re-interviewed Armenta and her family five days after the robbery. Armenta said that the people who robbed her had been to her home a few days before the robbery to borrow money and to try to sell things to her. She selected appellant's photo from a photographic line-up. She said she was not, "100 percent." At trial she said she was positive and said that she also recognized his voice.
Armenta's husband recalled that just before the robbery, he saw a glimpse of the man who robbed them outside the window with his face and head uncovered. The man was bald and had no facial hair. He was light skinned.
About a month after the robbery, Meredith McCoy was arrested. Armenta identified her as the female robber because she had a distinctive tattoo on her neck.
In exchange for favorable treatment, McCoy identified appellant as the other robber and confessed to her own involvement. She received a plea bargain pursuant to which she would plead no contest to first degree residential burglary, with three years of felony probation and no jail sentence, and would testify truthfully against appellant at the preliminary hearing and trial. When taking her plea, the court explained that if she did not testify truthfully she would be facing a maximum term of six years in state prison. The jury received a transcript of this hearing at trial.
After McCoy identified appellant, an officer showed Armenta a photographic lineup with appellant's photo. All of the men were bald. Appellant was the only person in the photographs with no facial hair. He was one of two light complexioned people. Appellant had a mustache and hair on his head when photographed 15 days after the robbery. That photo was not used in the line-up.
Armenta selected appellant's photograph from the line up and said she recognized his eyes. Armenta's husband and daughter could not pick appellant out of the photo lineup. Her husband picked out the other light skinned man.
Preliminary Hearing
At the preliminary hearing, McCoy testified against appellant. She testified that a few days before the robbery, she, appellant, and appellant's uncle bought prescription drugs from Armenta. Two days later, she and appellant went there to buy more pills and pay a debt. On the night they returned to rob Armenta, McCoy rode in appellant's gold colored car along with his uncle. Another car accompanied them, and Navarro was in it. She was in a romantic relationship with appellant at the time and she wanted to impress him. After Armenta opened the door for McCoy, appellant went in with the shotgun. It was a real gun. He did not point it at anyone. He demanded the drugs and they left. They drove to Lake Elsinore with appellant's uncle and consumed the drugs with friends. She did not know where the other car went.
On cross-examination at the preliminary hearing, McCoy acknowledged that she had asked for a reward in exchange for cooperative testimony. She conceded that she is a drug user, she was high on heroin when the police interviewed her, and she had used heroin the day before she testified. She stole prescription medicine from her grandmother. She had previously been arrested for shoplifting, driving under the influence, and underage drinking. She said she could not remember any other arrests.
Defense counsel did not then know, and so could not elicit, that McCoy had been arrested one month earlier for felony burglary and for being under the influence of a controlled substance. (§ 459; Health & Saf. Code, § 11550, subd. (a).) The prosecutor learned of this new charge after the preliminary hearing and disclosed it. He also disclosed McCoy's arrests in Riverside, after the preliminary hearing, for being under the influence and in possession of drug paraphernalia (Health & Saf. Code, §§ 11550, subd. (a); 11364) and, later, for felony receipt of a stolen vehicle in violation of probation (§459.)
Trial
At trial, McCoy refused to testify. Her attorney was present and was surprised. He said that she had previously indicated that she would be testifying and he had explained the consequences if she did not. She had been transported from the Riverside County jail, where she was awaiting trial on the new charges. She appeared before the jury in a blue county jail jumpsuit, and the trial court admonished her for refusing to testify in the jury's presence. She said she was not afraid to testify.
Outside the jury's presence, the court reassured her that it would not permit any questions concerning her open cases and that her attorney would protect her rights against self-incrimination. The court warned her that she would be facing the maximum sentence for the robbery if she did not testify as she had agreed. She still refused to answer questions. The court held her in contempt and had her held in jail overnight.
The next day, McCoy took the stand in the jury's presence and refused to testify again. She did answer a few of the prosecutor's questions about her tattoos. The court struck that testimony because she refused to answer any other questions and appellant did not have an opportunity to cross-examine her.
Over defense objection, the court declared that McCoy was unavailable and it allowed her preliminary hearing testimony to be read for the jury. Defense counsel argued that the declaration was premature because trial was not over and McCoy might yet change her mind.
A letter with the terms of McCoy's plea agreement was received into evidence. Counsel stipulated that, at the time the deal was offered, the district attorney's office believed that McCoy had no criminal history. Criminal records were admitted into evidence, by stipulation, that demonstrated that at the time of the deal she actually had a conviction for shoplifting and had just been charged with felony burglary in Riverside. Additional records were admitted, by stipulation, to prove that between the time of the preliminary hearing and trial in this case she had suffered a misdemeanor burglary conviction upon a no contest plea, had been charged with being under the influence and possessing paraphernalia in Riverside and, in a separate case, had been charged with receiving a stolen vehicle in violation of probation.
Armenta testified at trial that she recognized appellant's voice, as well as his eyes. Her description of his tattoos was somewhat inconsistent with the description she gave to police on the night of the robbery. She said that the gun looked real. She touched it and it was cold. She said that after the robbery, she realized that the woman had been to her home previously that week with appellant's uncle. She said she had known appellant's uncle for about four years and had loaned him $6 over the course of the week. He tried to sell her things to repay the debt but she did not buy anything. When they came to her room earlier in the week, appellant's uncle "eyed" a clear storage container where Armenta kept her pain medication. They stayed about twenty minutes. Appellant came to the door and told them to hurry. Armenta saw appellant's face that time, heard his voice and and saw tattoos on his calves.
Armenta acknowledged that, while testifying, she was on morphine, narco, robaxin and naproxen. She said she was on similar medication at the time of the robbery. She said she takes these medicines for back problems and does not sell them to others.
Armenta's daughter testified that she had never seen the robbers before. Only the man's eyes showed, and they were light brown, hazel or light green. She knew appellant's uncle and it was not him.
DISCUSSION
Unavailable Witness
A defendant has a constitutional right to confront trial witnesses against him (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), but the right is not absolute. (People v. Valencia (2008) 43 Cal.4th 268, 291.) Use of a witnesses' former testimony at trial is constitutionally permissible if the witness is unavailable for trial and the defendant had a prior opportunity to cross-examine. (Ibid.) In California, these requirements are codified in Evidence Code sections 1291 and 240.
The burden is on the proponent of the former testimony to prove that the witness is unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.) A witness who is physically available but who refuses to testify may be found unavailable only after the trial court takes reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing. (People v. Sul (1981) 122 Cal.App.3d 355, 364-365.) We review the trial court's factual findings regarding unavailability under the substantial evidence standard and independently review whether the facts constitute prosecutorial good faith and diligence. (People v. Herrera (2010) 49 Cal.4th 613, 628.)
Substantial evidence supported the trial court's determination that McCoy was unavailable. The court warned McCoy that if she refused to testify she would be jailed for an indefinite period of time, that she would lose the "no jail time" disposition to which she had agreed, and that she would face the maximum sentence. She said she understood these risks. The court assured her that it would not allow any questions about the open Riverside cases. The court held her in contempt, remanded her to custody, and returned her to court the following day. McCoy's attorney was present and advised her to testify. The prosecutor offered her immunity for her participation in the robbery, which he explained would mean he would not use her testimony against her for sentencing purposes. She still refused to testify, and told the court there was nothing it could do to make her testify.
It would have been futile for the court to threaten further incarceration. McCoy was already in custody for the Riverside cases, so would not have gone free in any circumstances. The court did not abuse its discretion when it declared her unavailable after the second day upon which she refused to testify.
Jury Instructions on Testimony of an Accomplice
Appellant contends that the trial court's instruction that it "must judge the testimony of each witness by the same standards, " conflicted with its instruction that the testimony of an accomplice must be corroborated. Appellant forfeited this claim because he agreed to the instructions as given.
Moreover, the claim that these two instructions conflict has been rejected where, as here, it appears from the entire record that the jury was not misled or the defendant prejudiced. (People v. Chavez (1985) 39 Cal.3d 823, 831-832; People v. Stewart (1983) 145 Cal.App.3d 967, 975.) The better practice is to use the bracketed language provided in CALCRIM No. 301 to clarify that, except for the testimony of the accomplice, which requires supporting evidence, the testimony of only one witness can prove any fact. (Chavez, at p. 831-832.) But appellant did not request the modification here and his substantial rights were not prejudiced by its omission. When read as a whole, an intelligent and capable jury would understand the instruction to have meant that the preliminary hearing testimony was to be treated as if it were given at trial, that the witnesses were each to be judged in the same unbiased manner, but that the testimony of McCoy, as an accomplice, should be viewed with caution and could not support a conviction without corroboration. The record in this case, when read as a whole, is unlike the record in People v. Dail (1943) 22 Cal.2d 642, 652, where the court instructed the jury to apply the same credibility standard to all witnesses, instructed them not to consider an accomplice's felony conviction when assessing his credibility, and told them the court found the accomplice testimony to be "well considered, " "calm, " and "dispassionate."
Prosecutorial Misconduct
Appellant contends that the prosecutor committed misconduct on six occasions. The contentions were forfeited because no objections were made at trial and it does not appear that objections would have been futile or that admonition would not have cured any harm caused by the alleged misconduct.
Under the federal Constitution, a conviction will be reversed if a prosecutor's improper comments so infect the trial with unfairness as to make the resulting conviction a denial of due process. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) Under state law, conduct that does not render a trial fundamentally unfair may still constitute prosecutorial misconduct if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) It is misconduct for a prosecutor to intentionally elicit inadmissible evidence. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) We will not consider a claim of prosecutorial misconduct on appeal unless, in a timely fashion and on the same ground, the defendant requested an assignment of misconduct and also requested that the jury be admonished to disregard the impropriety. (Id. at p. 380.) Without such an objection and request, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Cunningham, at pp. 1000-1001.)
Appellant did not claim prosecutorial misconduct, or request a curative instruction, in connection with any of the six incidents of which he now complains. We will review them in turn.
The prosecutor asked an investigating officer whether he was "aware of any physical problems that [appellant] might have or physical conditions." The court sustained appellant's hearsay objection and struck the officer's answer that he had, "been made aware of a back injury." When the court told the prosecutor to go about it another way, he asked whether the officer was "aware of whether or not [appellant ] had a heroin addiction problem?" The court sustained appellant's hearsay objection.
The prosecutor asked the same officer whether he knew appellant's "registered" address. When defense counsel objected that the question called for hearsay, the court conducted a sidebar, after which the officer was excused for the day, and there was no further reference to appellant's registration. The jury was aware that appellant had a criminal history from other sources because he stipulated that he had been convicted of a felony.
The prosecutor also elicited testimony from the officer about how inmates might communicate through a third party. The officer described such communication and used defense counsel, by name, as a hypothetical third party. The court sustained appellant's objection that the hypothetical lacked any foundation. Counsel did not move to strike the testimony and did not object when, in closing argument, the prosecutor said, "Ms. McCoy is in custody, and you heard officer Cuff's testimony about possibilities in terms of what could happen while you're in county jail. That's all I am going to say."
The prosecutor asked the same officer whether Armenta's daughter had told him anything else about the robbery. The court sustained defense counsel's hearsay objection, cutting off the officer's response: "Other than some information that she had heard on the street that [appellant's uncle]...." Counsel for both sides knew that Armenta's daughter had told another officer about rumors that appellant's uncle was sending him out on robbery sprees. The prosecutor had previously assured counsel that he did not intend to use the rumor information. The jury did not hear anything about the substance of the rumor or even that it related to appellant.
The prosecutor said in closing argument that "the People don't know where that shotgun is at this point. Too much [time] passed between when the defendant was actually taken into custody --" The court sustained appellant's objection that the argument was based on facts not in evidence, and instructed the jury that, "Discussion about what may have happened to the shotgun is stricken." The prosecutor continued, "... the People don't know what happened to that shotgun. It's impossible to know. [¶] It's the people's position that too much time passed between when the defendant was made, in terms of a suspect in this case, and when the actual crime date happened. Don't know where the gun is. All you have is the live testimony, the perceptions of Miss Armenta when she actually touched it, and Meredith McCoy's testimony...."
Finally, in his rebuttal argument, the prosecutor responded to a defense argument that Armenta and McCoy were not forthcoming witnesses. The prosecutor characterized defense counsel's cross-examination style as "accusatory, " and "abrasive, " and said "that's going to affect" the witnesses responses. Before doing so, he said he would play a video clip to demonstrate the effect of questioning on a witness. Defense counsel objected that he had not seen the clip. The court expressed the same concern and called counsel to sidebar. The prosecutor explained that it was a video clip from South Park in which a police character berates a motorist. The court said it did not sound objectionable as "demonstrative, " and defense counsel responded, "I am happy." Counsel did not ask to preview the clip and did not express any further objection to it.
Appellant forfeited each of these claims of prosecutorial misconduct because he did not object on that ground at trial and did not request curative instructions. (People v. Chatman, supra, 38 Cal.4th at pp. 379-380.) The trial court repeatedly demonstrated its willingness to sustain meritorious defense objections and to give curative instructions where appropriate. To the extent any harm might have been caused by the aforementioned conduct, which appears unlikely, it could have been cured by admonition.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J.