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People v. Forman

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 30, 2012
D057574 (Cal. Ct. App. Jan. 30, 2012)

Opinion

D057574

01-30-2012

THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. FORMAN, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. RIF146193)

APPEAL from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed.

A jury convicted Robert Forman of oral copulation by use of authority and misdemeanor theft. Forman contends the oral copulation conviction must be reversed because the prosecution violated his constitutional compulsory process rights by interfering with his ability to present the testimony of a defense witness. He also asserts the theft conviction must be reversed because the accomplice testimony concerning this offense was uncorroborated. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Forman was employed as a police officer during the events giving rise to the charges in this case. He was charged and convicted of oral copulation by use of authority (victim Kathryn, count 1), and misdemeanor theft (unidentified victim "John Doe," count 4). He was also charged with oral copulation by use of authority (victim Nadia, count 2), but was acquitted of this offense and the lesser included offenses. The jury also acquitted him of sexual battery while restrained (victim Tessa, count 3); however, it was unable to reach a verdict on the lesser included offense of sexual battery for this count, and the count was later dismissed by the trial court.

We confine our factual summary to the facts related to the two counts of which Forman was convicted; i.e., oral copulation against Kathryn, and theft from Doe. As we shall detail in our discussion section, Kathryn's boyfriend (Rick M.) was permitted to exercise his privilege against self-incrimination and ultimately was not called to testify by the defense; Forman argues that the loss of Rick M.'s testimony arose from prosecutorial misconduct. The theft offense occurred during Forman's encounter with alleged victim Tessa; Forman argues the trial court erred in denying his motion for acquittal as to this count because Tessa's testimony establishing the theft offense was uncorroborated. As we shall explain, we reject these contentions.

Oral Copulation Against Kathryn

Around 3:00 a.m. on April 18, 2008, Kathryn's boyfriend (Rick M.) summoned the police to Kathryn's apartment, reporting a home invasion robbery. When the police arrived, Kathryn was at the residence with Crystal Ramirez. The police told everyone in the apartment to come outside with their hands up. Kathryn complied, and then was instructed to reenter the apartment and to sit in a chair. The police determined the home invasion report was false, but decided to search the residence because Kathryn was on probation.

The record does not clearly establish Rick M.'s motivation for summoning the police. Kathryn testified she found out Rick M. had called the police after the police arrived. She testified that Rick M. had been living with her for several months; on April 18 he returned to her home after spending three or four days in jail; and there was a couple (Ramirez and a man) who had been staying at her home who Kathryn wanted to leave because they were making fake checks with their computer equipment. According to the police witnesses who testified on behalf of the prosecution, Rick M. called them to report a home invasion; the report was false; Kathryn told them that some people had come to her place with their computer equipment and stayed longer than she wished; and the police ultimately determined there were people at Kathryn's residence (including Ramirez) who were involved in criminal activity, including counterfeiting. Forman testified that when the police responded to Rick M.'s call, they found Rick M. outside at an intersection, and that Rick M. told them Kathryn was being held hostage in her apartment by several people.

Kathryn and Rick M. were methamphetamine users. During the police search, Kathryn was upset and crying. She was concerned that she was going to jail because she was on felony probation, she was "high" on methamphetamine, and Ramirez had been making fake checks while residing at her apartment.

About eight officers were at Kathryn's apartment at various times, including Forman. During the search the police found evidence related to check fraud and drug activity, including baggies with methamphetamine residue and a spoon and syringes used for shooting methamphetamine. Kathryn testified the syringes were used by Rick M. She told the police the syringes did not belong to her and she did not shoot drugs, and she showed them her arms. She repeatedly asked the officers if she would be going to jail. According to Kathryn, several officers told her she would go to jail, whereas Forman told her she would not go to jail if she cooperated. During the search an officer placed a pair of Kathryn's underwear on a dart board, and Forman kept asking her if the underwear belonged to her.

The police arrested Ramirez based on an outstanding arrest warrant and for drugs and drug paraphernalia found in her purse, and seized evidence related to check fraud. Forman, who was the officer in charge of making arrests and evidence collection, did not arrest Kathryn and did not seize the syringes found at her residence.

After about two hours, all the officers were gone from the apartment except Forman. When Forman was alone with Kathryn, he told her to follow him into the bedroom. Forman picked up an item of lingerie that was on her dresser, asked if it was hers, and told her that he would like to see her in it. Forman asked if he could see her breasts. She showed him one of her breasts, and he asked if her breasts were real. Kathryn testified she complied with his request because she was afraid and did not want to go to jail. Forman told Kathryn that he would be back to see her and left the apartment around 5:00 a.m.

Later that same morning, Kathryn was at her apartment with a few friends. Around 7:00 a.m., Forman returned to her apartment, knocked on the door, and announced his presence as "Officer Forman." Kathryn's "heart went to [her] stomach," but she opened the door because he was an officer and she did not know if she was still in trouble. Forman told her friends to leave. Forman then told Kathryn that she had agreed to "cooperate" and he had to "make this quick" because he had told an officer he was going for coffee. Forman went to her bedroom, sat on her bed, pulled his pants down, and told her to kneel down. Kathryn orally copulated Forman and allowed him to touch her breasts. Forman told Kathryn that he would be back and she should leave her midmornings open. Kathryn testified she complied with Forman's requests because she felt afraid and did not know what he could do to her.

Kathryn did not immediately report the incident to the police because she did not think they would believe her. However, about one month later the police came to her residence when someone called 911 because of a fight that was occurring between her and Rick M. When she heard the police knocking at the door, she hid in her closet because she was afraid it might be Forman. After the police contacted her landlord for a key, they knocked again and she opened the door. During this encounter, Kathryn eventually told the police about the sexual incident with Forman when explaining why she did not initially answer the door.

Kathryn also disclosed the incident to several individuals (including two friends and her substance abuse counselor). A friend who arrived at Kathryn's apartment a few minutes after the sexual encounter testified that Kathryn was crying and confused. The other friend testified that Kathryn was frightened, shaking, and crying when she made the disclosure.

Detective Julian Hutzler testified that pursuant to a Department of Justice Consent Decree implemented to provide oversight of the Riverside police department, the officers were required to activate recorders whenever they had contacts with the public that were not initiated by a radio call, and then to download the recordings to the police department's main computer server. Hutzler testified the media card needed to recover the actual voices that were recorded was missing from Forman's recorder. Further, a review of the downloaded data in the department's main computer showed that Forman did not download a recording for his encounter with Kathryn and he erased numerous recordings he made during this time period.

Testifying on his own behalf, Forman acknowledged the sexual encounter with Kathryn, but claimed it was consensual. He testified that when he responded to the home invasion call, Kathryn had expressed concern about people returning to her apartment who had been staying there, and she asked him to come back and help her get them to leave. He told her he would return. Later that morning while he was getting take-out food, he "had time to kill" and decided to go back to her apartment to help her. While he was there, Kathryn told him she had a sexual fantasy about being with an officer, and they engaged in sexual activity.

Forman admitted the oral copulation incident, but denied the earlier incident of Kathryn showing him her breast.

Theft from Doe

The theft from Doe occurred during an encounter that Forman had with Tessa prior to the alleged sexual battery against her. Tessa testified that in February 2008, she was raped by a Black man. Around midnight on February 15, 2008, Tessa's friend Nadia saw Forman sitting in his police car in a store parking lot, and Nadia told Tessa she should report the rape to Forman. Tessa got into the police car and told Forman about the rape. During this encounter, Tessa told Forman that she was angry at Black people, and Forman said he felt the same way. When an African-American man (Doe) pulled into the parking lot, Tessa told Forman she was going to "jack him" (i.e., steal from him). Forman did not try to dissuade her and acted as if it was fine with him. When Doe came out of the store, Tessa went up to him, got inside his car, offered to perform "sexual favors," and requested the money up front. Doe gave her $100, and Tessa got out of his car without performing any sexual acts.

After this occurred, Doe was angry and was "[c]alling [Tessa] names." Doe went to Forman's car and reported that Tessa had "just stole his money." Tessa got into Forman's patrol unit and Forman drove away without telling Tessa to return Doe's money. Doe returned to his car and followed Forman's vehicle. Forman, who appeared nervous, told Tessa to give him Doe's money, and Tessa complied. Forman then pulled over to the side of the street; Tessa did not understand why Forman was pulling over for the man she had just "jacked," and she asked him what he was doing. Forman told her not to worry about it.

Forman had called for backup, and several additional officers arrived at the scene. Tessa testified that the officers questioned her about the money. Doe was also at the scene; he appeared "very angry" and the officers told him to "settle down." Tessa testified that Forman did not tell the officers that he had the money.

One of the officers at the scene (Richard Glover) testified that when he arrived, Forman was standing between Doe and Tessa talking to them about what appeared to be a "prostitution deal that had gone bad." Doe was "a little upset" and "[s]peaking loud."

Detective Hutzler testified that a computer record for Forman's call to police dispatch indicated that Forman identified the problem as a "civil problem," which meant, for example, a dispute over payment for a rental car to which the police would respond to "keep the peace" but would not decide "who owed who money." In addition to the media card missing from Forman's recorder, the police department's downloaded computer data showed that Forman did not download any recordings for his encounters with Tessa and he had erased numerous recordings he made during this time period. Recordings from two of the other officers at the scene with Doe provided information about what was said after their arrival. In these recordings Tessa said, "I don't have his money." Forman said, "What I'm gonna do is I'm gonna take a report and that's all I can do now." However, the police dispatch computer record showed that Forman did not write a report about the incident.

When the officers were finished at the scene, Tessa started walking away. About five minutes later, Forman pulled up next to her and told her to get in his car because Doe was waiting for her around the corner. Forman then drove into a dark secluded alley or parking lot, stopped the car, and tried to kiss her. Tessa backed away. They talked a while longer and Forman returned the $100 to her. Forman then put his hand down her pants and touched her vagina. Frightened, Tessa pulled his hand out, and then ran out of the car to the street where there were cars and people.

This is the incident for which the jury acquitted Forman of sexual battery while restrained, and was unable to reach a verdict on the lesser offense of sexual battery.

When investigating reports of Forman's sexual misconduct, the police found identifying information for Tessa in Forman's locker. After she was contacted by the police, Tessa eventually disclosed her encounters with Forman.

Forman denied participating in the theft from Doe. He testified that when he was in the store parking lot, he saw Tessa get out of Doe's vehicle. When Forman was driving Tessa to look for Nadia, Doe was following him. Forman and Doe pulled their vehicles over, and when Forman approached Doe, Doe was "extremely irate" and yelling that Tessa had just stolen $100 from him. Forman called for backup, and after the other officers arrived Doe told Forman that Tessa stole the $100 during a solicitation for prostitution. Tessa denied taking Doe's money, so Forman told Doe all he could do was take a report. Forman ultimately did not write a report because Doe stated he did not want anything done and refused to provide identifying information. Forman denied any sexual encounter with Tessa.

Jury Verdict and Sentence

The jury convicted Forman of oral copulation by use of authority (Pen. Code, § 288a, subd. (k)) and misdemeanor theft (§ 488). The court suspended imposition of sentence and placed him on three years' probation.

Subsequent unspecified statutory references are to the Penal Code.

DISCUSSION


I. Claim of Prosecutorial Interference with Defense Witness


A. Background

Forman argues the count 1 conviction pertaining to Kathryn must be reversed because the prosecution's actions prevented him from being able to present exculpatory testimony from Kathryn's boyfriend, Rick M. The court ruled on issues relating to Rick M.'s testimony on three occasions: (1) when the defense proffered Rick M.'s testimony at trial; (2) when the defense moved for a mistrial after Rick M. exercised his privilege against self-incrimination; and (3) during a defense new trial motion. During these proceedings, the parties submitted declarations to explain their various communications with Rick M.

Parties' Communications with Rick M.

On July 3, 2008 (several months before trial), the police interviewed Rick M. while he was in custody at the jail. Rick M. told the police that several days after April 18 (the date of the incident with Forman), Kathryn told him that "she had to give a police officer oral sex" because "she did not want to go to jail." He stated she "was not crying" when she made this disclosure. A summary of this interview was provided to defense counsel before trial. The prosecution identified Rick M. in its pretrial list of potential witnesses, but ultimately did not call him to testify at trial.

Defense counsel did not identify Rick M. in the defense pretrial witness list, but during the defense case decided to call him as a witness. Defense counsel did not know Rick M.'s whereabouts before trial; during trial, however, counsel learned Rick M. was at a federal detention center in El Centro awaiting deportation to the Philippines. On December 2, 2009, a defense investigator interviewed Rick M. at the detention center. Rick M. told the investigator that during the time period of the incident with Officer Forman, he and Kathryn were "doing drugs and committing criminal acts"; he was incarcerated because of a residential burglary that he committed with Kathryn; and Kathryn lied to the police and "walked free." Rick M. stated that Kathryn "would lie constantly and manipulate the truth to her advantage," and that during their relationship she was involved with a liquor store owner to whom "she was providing sex for other things in return."

Assessing that Rick M.'s statements were exculpatory, defense counsel obtained an order transferring Rick M. to local custody so he could testify on behalf of the defense. When the defense investigator contacted Rick M. at the jail at about 11:10 a.m. on December 7, Rick M. was friendly and agreed to answer more questions about Kathryn. During this interview, Rick M. told the investigator that he arrived at Kathryn's apartment at about 6:00 a.m. on April 18 (the morning of the charged incident shortly before Forman's arrival). Kathryn was alone and "putting on her make-up and getting dressed"; and she asked him to leave "as if she was expecting someone." Rick M. did not see Kathryn until about three days later; at this time Kathryn told him that "the cop made her suck his dick" and she did not seem upset. The defense investigator told Rick M. that he would be asked questions by the defense and the prosecution. Rick M. was cooperative with the defense; he appeared eager to testify; and he did not express any concerns about whether he could have criminal liability for his testimony.

At about 11:40 a.m. on December 7 (outside the presence of the jury), the court and parties discussed the defense plan to present Rick M.'s testimony after the lunch break. The court noted Rick M. was in custody, and asked if there were any concerns that Rick M. would raise his privilege against self-incrimination. Defense counsel stated Rick M. had already served his sentence for a burglary offense and he was just waiting for deportation; he would not be raising a Fifth Amendment privilege; and there was no need to have counsel available for him. When the court asked defense counsel if he had spoken with Rick M. and if Rick M. was willing to answer questions, counsel responded that his investigator had spoken to Rick M. and Rick M. was "here willingly."

Before the lunch break, the defense provided the prosecution with a witness statement from Rick M. referencing his newly-disclosed claim that he had seen Kathryn " 'getting dressed, primping or getting ready' " on the morning of the April 18 incident with Forman. During the lunch break, the deputy district attorney decided to visit Rick M. at the jail to determine if his testimony would be different from his earlier statement to the authorities. The prosecutor and two detectives interviewed Rick M. at the jail for about 10 minutes. The prosecutor briefly reviewed Rick M.'s prior statement with him, and asked if his testimony was going to be different. Rick M. told the authorities that he knows that Kathryn lies. He stated he had returned to Kathryn's apartment the morning of the incident with Forman, and Kathryn was "getting dressed or getting ready for something."

During the lunchtime interview, the authorities repeatedly told Rick M. that he had to tell the truth, and stated he "should not use the trial as the venue to exact revenge on [Kathryn] for any harm she may have cause[d] him." There was no mention to Rick M. of consequences from his testimony; no references to the concepts of immunity or perjury; no discussion of other criminal activity going on at Kathryn's house on the date of the charged offense; and no mention of prosecution for that activity. However, Rick M. "was curious" about the questions that could be asked at trial by defense counsel and the prosecutor, and he "appeared to become concerned when he realized the attorneys could question him about possible criminal conduct." Further, Rick M. "was surprised" that he was being called as a defense, rather than prosecution, witness.

Rick M. told the authorities that he was angry at Kathryn for various reasons, including his view that she was responsible for his criminal conviction and pending deportation to the Philippines.

According to the authorities, during the December 7 lunch-break interview, Rick M. indicated that he thought the defense investigator was a representative of the prosecution, and they advised him that the investigator was employed by the defense. In contrast, the defense investigator stated that Rick M. clearly understood who he was.

Rick M.'s Invocation of His Privilege Against Self-incrimination

When Rick M. was brought into the courtroom after the lunch break, he indicated to defense counsel that he no longer wanted to testify. Defense counsel had learned about the prosecution's lunchtime visit to Rick M., and defense counsel expressed concerns to the court about witness tampering. At some point an attorney had been appointed to represent Rick M. The court instructed the prosecutor and defense counsel to jointly consult with Rick M.'s counsel.

It is not clear from the record precisely when counsel was appointed for Rick M.

After Rick M.'s counsel consulted with the parties' attorneys and with Rick M., Rick M.'s counsel informed the court that Rick M. intended to invoke his privilege against self-incrimination. During an ensuing Evidence Code section 402 ("Section 402") hearing, Rick M. took the stand and invoked the privilege when asked by defense counsel if he lived with Kathryn on April 18, 2008. Rick M.'s counsel told the court the privilege applied to any questions that related to Rick M.'s relationship with Kathryn. The court and counsel discussed several possible bases for Rick M.'s culpability (which were apparently identified by the prosecutor), including false reporting, possession of hypodermic syringes, and check fraud. Defense counsel argued there was no good faith possibility Rick M. would be prosecuted for anything, noting the statute of limitations had run on any misdemeanor offenses such as false reporting or possession of drug paraphernalia. Rick M.'s counsel responded she was concerned the check fraud could be prosecuted as a felony for which the statute of limitations had not run.

It appears the potential for false reporting culpability was discussed during the meeting between the prosecutor, defense counsel, and Rick M.'s counsel, and the additional bases of possible culpability were raised by the prosecutor when the proceedings resumed before the trial court.

The court concluded Rick M. had properly invoked his privilege against self-incrimination as to the events on April 18, 2008, including his living arrangements. Defense counsel then questioned Rick M. about his opinion concerning Kathryn's reputation for honesty, and Rick M. testified that Kathryn could be dishonest at times. Rick M.'s counsel told the court she was concerned that questions concerning the basis for this opinion would involve facts about the April 18 events. The prosecutor then offered to stipulate that if called to testify, Rick M. would opine that Kathryn could be dishonest.

Defense counsel then resumed his Section 402 questioning of Rick M., asking if Rick M. had spoken with Kathryn several days after the April 18 incident. Rick M. testified he had, and Kathryn told him "the officer asked her to give him oral sex." When defense counsel asked if she seemed upset, Rick M. answered, "Yes." When questioned about his prior inconsistent statement to the defense investigator that Kathryn did not seem upset, Rick M. testified he said this because he was upset with Kathryn because she had caused him to go to jail. However, on further questioning, Rick M. stated he truthfully told the defense investigator that "she did not seem upset." On cross-examination by the prosecutor, Rick M. acknowledged he told a detective that Kathryn stated to him that she " 'had to give the officer oral sex' " and she performed the act "so she would not go to jail."

After this questioning about Kathryn's disclosure of the incident with Forman, the prosecutor offered to stipulate concerning this testimony. Defense counsel argued the testimony concerning the April 18 events was incomplete, and if he could not introduce all of Rick M.'s statements about the incident (i.e., including the " 'primping' " activity evidence), he only wanted the stipulation about her dishonesty. The prosecutor responded it was not proper to permit a stipulation as to only a portion of Rick M.'s statements.

Absent a stipulation from the parties, the court ruled Rick M. could be called as a witness to present this limited testimony, with counsel questioning him in leading form so the only answer would be "yes" or "no." Defense counsel then informed the court that he would not call Rick M. as a witness, and Rick M. was excused. Defense Motions for Mistrial and New Trial

Thereafter, defense counsel moved for a mistrial, and then a new trial, based on a claim the prosecution had improperly interfered with securing the complete presentation of Rick M.'s testimony. Defense counsel argued Rick M.'s positive attitude towards testifying changed after the prosecution met with him during the lunch break; the prosecution had intimidated Rick M.; there was no good faith basis for a claim that Rick M. might be prosecuted; prosecution witnesses testified without any concern for culpability; and the prosecution could have offered Rick M. immunity. The trial court denied both motions.

When evaluating Forman's requests for relief, the court noted its ruling on Rick M.'s assertion of his Fifth Amendment privilege did not preclude defense counsel from presenting Rick M.'s testimony concerning Kathryn's dishonesty and whether she was upset when she disclosed the sexual encounter with Forman; however, defense counsel ultimately made a strategic decision not to call Rick M. as a witness. The court assessed the only significant evidence that was excluded based on Rick M.'s assertion of his privilege was his testimony describing Kathryn's primping activity the morning of the incident.

In opposition to Forman's motions, the prosecutor argued the prosecution did not engage in misconduct when it conducted the lunch-hour interview with Rick M. to evaluate his newly-disclosed statement concerning Kathryn's primping activity. Further, the prosecutor argued the primping activity evidence was not material because it was consistent with Kathryn simply getting ready for the day; it was inconsistent with Forman's testimony that his visit to Kathryn's home was unplanned; and it was not credible given its late-hour disclosure by Rick M. and Rick M.'s bias against Kathryn. In response, Forman argued it was for the jury to determine whether the evidence of Kathryn's primping activity was persuasive on the defense theory of a consensual encounter, and it was only after the lunch-hour interview that Rick M. began equivocating on his statements that were favorable to the defense.

During the proceedings, the trial court offered defense counsel the opportunity to question witnesses about what transpired during the lunch-hour jail interview of Rick M., but defense counsel declined. When denying Forman's motions, the court stated there was no evidence of prosecutorial misconduct other than the arguable inference arising from the timing of Rick M.'s invocation of his Fifth Amendment privilege, and the court noted that on numerous occasions it had seen previously cooperative witnesses decide not to testify "the second they got to court." Further, the court concluded the defense was not deprived of material evidence, finding the loss of the testimony concerning Kathryn's primping activity was not particularly detrimental to the defense. Additionally, the court observed that Rick M.'s testimony would have benefited the prosecution by showing that Kathryn made a statement consistent with her trial testimony; i.e., telling Rick M. that she was required to perform oral sex to avoid being arrested.

B. Analysis

Under the "compulsory process" clauses of the federal and state Constitutions, a defendant has a constitutional right to compel the testimony of a witness who has evidence favorable to the defense. (People v. Jacinto (2010) 49 Cal.4th 263, 268-269.) A defendant's compulsory process rights can be violated if the prosecution intimidates defense witnesses by, for example, threatening them with prosecution for perjury or for any crimes they reveal during their testimony. (Id. at p. 269; In re Martin (1987) 44 Cal.3d 1, 30-31, 40-41.) However, the prosecutor may permissibly provide information about possible culpability to assist with the Fifth Amendment privilege determination, as long as the communication does not amount to an express or implied threat of prosecution or some other type of witness intimidation or active discouragement. (See People v. Lucas (1995) 12 Cal.4th 415, 451-453, 457-458 [prosecutor may properly provide information relevant to self-incrimination concern]; People v. Harbolt (1988) 206 Cal.App.3d 140, 152-155; U.S. v. Pablo (10th Dist. 2010) 625 F.3d 1285, 1296-1297; In re Martin, supra, 44 Cal.3d at pp. 39-41, & fn. 7; People v. Warren (1984) 161 Cal.App.3d 961, 972-973 [court's and prosecutor's statements relevant to witness's no-self-incrimination privilege must not "cross[ ] the line separating proper advisement from intimidation"].)

To prevail on a claim of prosecutorial violation of the right to compulsory process, the defendant must establish that the prosecution engaged in conduct that was entirely unnecessary to the proper performance of its duties and of such a character as to transform a willing defense witness into an unwilling witness, and that the misconduct was a substantial cause of the loss of the witness's testimony. (In re Martin, supra, 44 Cal.3d at p. 31.) Further, the defendant must establish the materiality of the lost evidence by making " 'some plausible showing' "or demonstrating a "reasonable possibility" that the testimony could have been material and favorable to the defense. (Id. at p. 32.) That is, the defendant must show "a reasonable likelihood that the testimony could have affected the judgment of the trier of fact" in a manner benefitting the defendant. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 873-874; People v. Jacinto, supra, 49 Cal.4th at pp. 271-272.)

When reviewing Forman's claim that his compulsory process rights were violated, we use the standard generally applied to issues involving constitutional rights; i.e., we defer to the trial court's factual findings if supported by substantial evidence, and independently review whether a constitutional violation has occurred. (See People v. Cromer (2001) 24 Cal.4th 889, 894, 900-901; People v. Seijas (2005) 36 Cal.4th 291, 304; U.S. v. Pablo, supra, 625 F.3d at p. 1296.) No Showing of Prosecutorial Misconduct

Preliminarily, we note that Forman's claim of a violation of his compulsory process rights is not based on an assertion that the trial court erred in its ruling on Rick M.'s privilege against self-incrimination. A defendant's right to compulsory process does not permit the defendant to compel a witness to waive the no-self-incrimination privilege. (People v. Woods (2004) 120 Cal.App.4th 929, 938.) A trial court is required to permit the exercise of the privilege if there is any possibility the witness's testimony could serve as a link in a chain of evidence tending to establish guilt of a crime, regardless of the likelihood of prosecution. (People v. Williams (2008) 43 Cal.4th 584, 614; People v. Seijas, supra, 36 Cal.4th at p. 305 [if party asserting privilege shows testimony might incriminate him, court must allow exercise of privilege even if prosecution is unlikely].)

Rather, Forman argues his compulsory process rights were violated based on prosecutorial misconduct. He asserts the violation arose from the prosecution's conduct during the lunch-break interview, and its subsequent conduct during the discussions in court concerning Rick M.'s potential culpability.

Forman contends that during the lunch-break interview the prosecution explicitly or implicitly threatened Rick M. with prosecution. The record before us does not support this claim. The prosecutor was entitled to interview Rick M. at the jail because he was an anticipated defense witness who had made newly-disclosed statements to the defense. (See In re Littlefield (1993) 5 Cal.4th 122, 131 [prosecutor can properly investigate prospective defense witness to determine nature of anticipated testimony].) There is no showing the prosecutor made any improper statements during the interview in an attempt to dissuade Rick M. from testifying. The information submitted by the prosecution— which the trial court was entitled to credit—reveals that during the lunchtime interview the prosecution told Rick M. to tell the truth and that he could be questioned by the attorneys about his possible criminal conduct, but that the prosecution did not mention or discuss any possible negative consequences from his testimony. Although Rick M. was informed that he might be asked at trial about his criminal conduct (i.e., for impeachment purposes), this does not indicate the prosecution suggested to Rick M. that he could be prosecuted for any criminal conduct if he testified.

We note that in the new trial motion, defense counsel submitted a declaration stating the deputy district attorney who visited Rick M. told another deputy district attorney that Rick M. was informed during the lunchtime interview that he could expose himself to criminal liability for check fraud if he testified. Recognizing this information was hearsay, the trial court gave defense counsel an opportunity to present testimony on this point, but defense counsel did not do so. The trial court was not required to consider this hearsay information when making its ruling.

Further, we are not persuaded by Forman's contention that the prosecution must have threatened Rick M. with prosecution during the lunchtime interview because he invoked his privilege immediately after his contact with the prosecution. Rick M.'s invocation of his privilege is readily attributable to the fact that he had now consulted with counsel appointed to represent him. Absent some showing of overbearing conduct by the prosecution, the timing of Rick M.'s invocation, standing on its own, does not support an inference of prosecutorial interference.

Turning to the conduct during the in-court discussions, Forman argues the prosecutor improperly led (or allowed) Rick M.'s counsel and the court to believe that Rick M. might be prosecuted if he testified, whereas there was no good faith basis to believe this would occur. Even assuming the prosecution had little or no intention to prosecute Rick M., Forman has not cited any law that requires a prosecutor to advise a defense witness, the witness's counsel, or the court concerning the likelihood of prosecution. Further, there is nothing in the record showing the prosecutor crossed the line from mere provision of information to witness intimidation when he discussed with the court and counsel the potential offenses that could apply to Rick M. based on his activity or presence at Kathryn's residence.

In a related argument, Forman asserts the prosecutor engaged in misconduct because he knew from the facts adduced at trial that there was no evidence in the prosecution's possession that could support imposing culpability on Rick M. based on his residing with Kathryn on April 18, and the prosecutor improperly misled or allowed Rick M.'s counsel to reach a contrary conclusion. Regardless of the facts revealed during Forman's trial, there is no basis to assume Rick M. was absolved of all culpability based merely on these facts. Because Rick M.'s potential culpability (which was not intertwined with Forman's alleged misconduct) was not at issue during the trial, there may have been other evidence concerning his potential liability not addressed at trial. To the extent Forman argues the prosecutor misled the trial court in this regard, the contention is unavailing because the court was equally aware of the evidence presented at trial.

Additionally, the prosecutor was not required to extend immunity to Rick M. (People v. Lucas, supra, 12 Cal.4th at p. 459.) The record does not show the prosecutor entered into immunity agreements with prosecution witnesses in exchange for their testimony; thus, this is not a case where the prosecution failed to administer immunity grants in an evenhanded manner. (See People v. Hunter (1989) 49 Cal.3d 957, 974- 975.) Nor was the prosecutor obligated to try to dissuade Rick M.'s counsel from advising her client to assert the self-incrimination privilege; this was a matter between Rick M. and his counsel. (See People v. Mincey (1992) 2 Cal.4th 408, 460 [no prosecutorial misconduct because it was witness's attorney, not prosecutor, who advised witness to assert privilege].)

Nor is this a case where the trial court might have been compelled to grant immunity. To the extent a court has such power, the court may be required to act if the witness's testimony is clearly exculpatory and essential to the defendant's case. (People v. Lucas, supra, 12 Cal.4th at p. 460 [immunity need not be granted when testimony is ambiguous or relates only to credibility of prosecution witness].) As reflected in our discussion below on the materiality issue, Rick M.'s testimony does not fall into this category.

No Showing of Materiality

Forman's claim of a compulsory process violation also fails because he has not shown he was deprived of material, favorable evidence. Forman argues Rick M.'s testimony satisfies the materiality requirement because, "unsullied by whatever was said to [Rick M.]" during the lunchtime interview, it would have shown a consensual encounter based on Kathryn's activity of "primping or getting ready as if for a date"; Kathryn was not upset when she told Rick M. about the incident; and Kathryn was a habitual liar. We are not persuaded.

Under the court's ruling, Forman was not precluded from presenting Rick M.'s testimony concerning Kathryn's dishonesty and whether she was upset when disclosing the sexual encounter. The record fails to show the remaining portion of Rick M.'s testimony concerning Kathryn's primping activity, standing on its own, rises to the level of material, favorable evidence. Rick M. did not provide any information about who Kathryn might have been preparing herself for. The inference that Kathryn was preparing for Forman's expected arrival that morning was inconsistent with Forman's own testimony indicating that there was no specific plan as to when he would return to Kathryn's apartment. That is, although Forman testified he told Kathryn he would return to help her, he explained he made the decision to return that morning while he was getting take-out food. Further, when interviewed by the prosecution and the defense, Rick M. consistently stated that Kathryn told him she was required to give the officer oral sex, which statement would have buttressed the prosecution, not the defense, case.

In sum, the excluded item of Rick M.'s testimony concerning Kathryn's primping was not strong evidence favorable to the defense; the defense was not precluded from presenting Rick M.'s favorable statements concerning Kathryn's dishonesty and her demeanor when disclosing the sexual encounter with Forman; and the presentation of Rick M.'s testimony would have included evidence favorable to the prosecution. Under these circumstances, Forman has not shown he was deprived of the opportunity to present evidence that created a reasonable possibility of affecting the outcome on count 1.

Finally, Forman argues count 1 must be reversed because the trial court used an improper standard of materiality when ruling on the new trial motion. He cites the court's statement that the record must show the loss of evidence that had "a strong chance" of resulting in a different verdict, whereas the appropriate standard is merely " 'some plausible showing' " or " 'a reasonable possibility' " of a different verdict. Reading the court's statements in their entirety, we are satisfied the court understood and applied the correct standard. At the inception of the new trial motion hearing, the court cited the " 'plausible showing' " and " 'reasonable possibility' " standards; thus the record explicitly shows the court was aware of the proper standards. Later during its discussion, the court in effect referenced these standards, asking defense counsel to explain what lost testimony was "arguably favorable and material to the defense," and at another point asking what lost evidence created "a possibility of resulting in a different verdict."

Although the court's subsequent reference to a "strong chance" could suggest a deviation from the proper standard, given the court's express and repeated delineation of the correct standard, we construe the statement as mere imprecision in wording rather than a misunderstanding of the law. (See People v. Mack (1986) 178 Cal.App.3d 1026, 1032 [appellate court presumes trial court applied correct law].) In any event, we have independently reviewed the materiality issue under the proper standard and agree with the trial court's conclusion on this point.

Given our holding finding no prosecutorial misconduct and no deprivation of material evidence, we need not address Forman's contention that a violation of compulsory process rights is reversible per se.
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II. Corroboration of Accomplice Testimony About Theft from Doe

At the conclusion of the prosecution's case, Forman made a motion for acquittal on the theft count. He argued the evidence showing he aided the theft was based on the testimony of an accomplice (Tessa), and Tessa's testimony was not corroborated. The trial court denied the motion, finding Tessa's testimony was sufficiently corroborated by evidence showing Forman's consciousness of guilt to warrant submitting the issue of corroboration to the jury. Forman argues his motion for acquittal should have been granted.

To decide whether a motion for acquittal should have been granted at the close of the prosecution's case, we evaluate only the prosecution's evidence, and we view this evidence in the light most favorable to the judgment. (People v. Cole (2004) 33 Cal.4th 1158, 1213; People v. Rice (1988) 200 Cal.App.3d 647, 651.) The purpose of a motion for acquittal is " 'to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question is 'simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' " (People v. Stevens (2007) 41 Cal.4th 182, 200.)

A conviction cannot be based solely on the uncorroborated testimony of an accomplice. (§ 1111.) The corroborating evidence necessary to support an accomplice's testimony may be slight and entitled to little consideration when standing alone. (People v. Perry (1972) 7 Cal.3d 756, 769, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 28.) The corroborating evidence must relate to some act or fact which is an element of the crime, but need not be sufficient in itself to establish the corpus delicti or every element of the crime. (Perry, supra, at p. 769; People v. Fauber (1992) 2 Cal.4th 792, 834.) Corroboration is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (Perry, supra, at p. 769.)

When determining the issue of corroboration of accomplice testimony, we eliminate the accomplice's testimony from our consideration, and examine the remaining evidence to determine if there is evidence connecting the defendant to the crime. (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) If there is sufficient evidence for a jury to reasonably find corroboration, the issue of corroboration should be submitted to the jury even if the evidence could also support a contrary finding. (People v. Perry, supra, 7 Cal.3d at pp. 773-774.) Evidence showing the defendant's consciousness of guilt may provide corroboration even if there is another, innocent explanation for the defendant's conduct; the weight of the corroborating evidence in this situation is for the jury to decide. (Id. at pp. 771-774.)

Drawing all inferences in favor of the prosecution, the evidence presented during the prosecution's case was sufficient to support a jury finding of corroboration of Tessa's claim that Forman aided and abetted the theft. Apart from Tessa's testimony, the prosecution's evidence included computer records indicating the incident with Doe occurred sometime after midnight and Forman characterized the dispute as civil; the officers' recordings reflecting Tessa denied she had Doe's money; Officer Glover's testimony indicating Doe was upset and the dispute was over a prostitution deal "gone bad"; a computer record indicating Forman did not write an incident report; and Detective Hutzler's testimony indicating Forman's media card was gone from his recorder, he did not download any recordings for his encounters with Tessa, and he erased numerous recordings during this time period.

This evidence—including the lateness of the hour and statements reflecting Doe was upset and accusing Tessa of wrongfully taking his money during a prostitution encounter—support that Forman knew this was a criminal dispute involving prostitution and theft, not a mere civil dispute. However, Forman characterized the dispute as civil in the police dispatch computer record, which can support an inference that he was trying to downplay the significance of the incident, thereby evincing a consciousness of guilt. An additional inference of consciousness of guilt can be drawn from the evidence showing he failed to follow the requirement that he preserve a recording of the encounter with Tessa which could have revealed his participation in the theft. Also, Forman's failure to write an incident report can further suggest he was trying to ensure there would be no further inquiry into the incident because of his role in the theft.

Contrary to Forman's contention, the corroborative evidence presented during the prosecution's case does not merely show Forman's presence at the scene and opportunity to commit the crime. (See People v. Abilez (2007) 41 Cal.4th 472, 506 [citing cases holding mere presence is insufficient corroboration for accomplice testimony].) The evidence reflecting Forman's consciousness of guilt provided the slight corroboration required to connect him to the theft independent of Tessa's testimony, and warranted submitting the issue of corroboration to the jury.

DISPOSITION

The judgment is affirmed.

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HALLER, J.
WE CONCUR:

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HUFFMAN, Acting P. J.

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MCDONALD, J.


Summaries of

People v. Forman

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 30, 2012
D057574 (Cal. Ct. App. Jan. 30, 2012)
Case details for

People v. Forman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. FORMAN, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 30, 2012

Citations

D057574 (Cal. Ct. App. Jan. 30, 2012)