Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Super. Ct. No. FSB056399
Law Offices of Mark Raymond McDonald and Mark Raymond McDonald for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ron Jakob, and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
McKinster, J.
Defendant Andres Landeros Garcia appeals a conviction for murder, attempted murder and assault with a firearm, arising out of a drive-by shooting. He contends that the trial court violated his Sixth Amendment right to confront adverse witnesses by allowing the prosecution to call defendant’s brother Robert Garcia as a witness, knowing that Garcia would refuse to testify. He also contends that the prosecutor committed prejudicial misconduct by referring in his opening statement to Robert Garcia’s anticipated testimony when he knew that Garcia would refuse to testify and by questioning Garcia before the jury after Garcia made it clear that he would not testify. We reject both contentions.
We will refer to Robert Garcia either by his full name or as “Garcia.” We will refer to defendant Andres Garcia simply as “defendant.”
PROCEDURAL HISTORY
Defendant was charged with the first degree murder of Rosa Trigo (Pen. Code, § 187, subd. (a)), the willful, deliberate and premeditated attempted murder of Mauricio Ortiz (§ 664/187, subd. (a)), and assault with a firearm on Elvira Yanez (§ 245, subd. (a)(2)). Each count carried an allegation that defendant personally used a firearm, within the meaning of section 12022.53, subdivisions (b), (c) and/or (d) (counts 1 & 2) or of section 12022.5, subdivision (a) (count 3).
All statutory citations refer to the Penal Code unless another code is specified.
A jury convicted defendant on all counts as charged and found all of the firearm use allegations true. The court imposed a determinate term of 21 years four months and two consecutive terms of 25 years to life, to be served consecutive to the determinate term.
Defendant filed a timely notice of appeal.
FACTS
The victims-Rosa Trigo, Mauricio Ortiz and Elvira Yanez-and several of their friends went to the El Patio Club in Rialto on the night of April 16, 2006. Around 2:00 a.m., the group left the club in a caravan of three vehicles, to go to a party. Ortiz, Trigo and Yanez were all in Ortiz’s car, a Camaro. Shortly after they pulled out of the parking lot onto Foothill Boulevard, Ortiz began making “gang signs” at the occupants of a Hummer. The Hummer pulled up next to the passenger side of the Camaro. Ortiz continued to make gang signs. (Ortiz testified that he was just “dancing” in his seat and that it might have appeared to the occupants of the Hummer that he was throwing gang signs.)
The Hummer and a black Ford F-150 truck which was behind it turned off onto a side street. They reappeared behind the victims’ caravan several blocks later. Both vehicles pulled up on the passenger side of the Camaro. Shots were fired at the Camaro from both the Hummer and the truck. Ortiz made a U-turn, then pulled over to the side of the road and stopped. The Hummer and the truck sped off. The passenger side of the Camaro was riddled with bullet holes and the windows were shattered. Nine millimeter shell casings were retrieved from the roadway. Rosa Trigo had suffered a fatal gunshot wound to the torso and died at the scene.
None of the victims or their friends saw who was driving the Hummer during the incident. However, one of the group, Sergio Macias, had seen defendant drive away from the club in a dark-colored Hummer which was similar to the one he saw during the incident. Defendant was the only person in the vehicle. When it left the club, the Hummer was followed by a black pickup truck.
Shortly before the trial began, and nearly three years after the incident, Yadira Morales, who was in one of the cars in the caravan, told police that defendant was in a Hummer with several other men who whistled at them as they entered the club that evening. She had originally told the investigator that she saw a metallic silver Hummer in the parking lot but did not pay any attention to it and could not describe the driver. In the later interview, she identified defendant from a photograph which had been shown on television and in the newspapers. She told the investigator that she had seen the photograph in the media, although she denied it at trial.
Macias worked in security at the club and had seen defendant there on other occasions but did not know his name. Macias called the club for assistance after the shooting. A supervisor reported the incident to the police, who responded to the scene. Eduardo Lado, another of the security guards, called Daisy Duran, who was a regular patron of the club and who frequently went there with defendant. He told Duran about the shooting and described the Hummer and the person Macias thought was driving it. Duran gave him defendant’s name. Sergeant Crocker of the San Bernardino Police Department spoke to Duran later that morning. She gave him defendant’s name. Around 4:00 or 5:00 a.m., defendant called Duran. He said he had heard about the incident. He asked her if a license number had been obtained and whether anyone had died. She reported the call to Sergeant Crocker.
On June 1, 2006, Crocker went to the home of Rosa Mayorga looking for defendant. Mayorga is the mother of defendant’s child but they were no longer living together at that time. As Crocker waited in his vehicle a few houses away from Mayorga’s, he saw Mayorga drive toward him in a black Nissan Titan truck. Defendant’s brother Robert Garcia was in the passenger seat. Inside the truck were registration documents for the Titan as well as for a Hummer H-2. Both vehicles were registered in the name of Jairo Munoz but gave Mayorga’s address. Munoz did not live there. A Cadillac Escalade was also registered to Munoz. That vehicle was impounded from April 5, 2006 to May 4, 2006, after defendant drove it without a driver’s license and at an excessive speed. Macias testified that he had once seen defendant driving a black Escalade when defendant came to the club on another occasion.
Sergeant Crocker testified that none of the vehicles registered to Munoz was at his home when Crocker went to speak to him. He never saw Munoz in possession of any of them or received any information that indicated that Munoz was involved in the shooting.
Several weeks after the shooting, the Hummer registered to Jairo Munoz was found abandoned on a side street in Highland. A fingerprint which matched defendant’s right index finger was found on the left side of the interior sunroof panel.
Robert Garcia was arrested for his involvement in the incident. Defendant, who was apparently in the country illegally at the time of the shooting, returned to Mexico. He was arrested on December 30, 2007, when he attempted to enter the country using false identification.
Robert Garcia apparently pleaded guilty to assault with a deadly weapon and admitted personal use of a firearm.
LEGAL ANALYSIS
THERE WAS NO REVERSIBLE ERROR PERTAINING TO ROBERT GARCIA’S APPEARANCE BEFORE THE JURY
Introduction
Defendant asserts that his conviction must be reversed because the court violated his rights under the confrontation clause of the Sixth Amendment by allowing the prosecutor to question his brother, Robert Garcia, before the jury, after the court knew that Garcia would refuse to testify. He also contends that the prosecutor committed misconduct by referring to Robert Garcia’s anticipated testimony in his opening statement and by calling Garcia to testify, even though he knew that Garcia would refuse to testify.
The issues arose as follows.
Prior to jury selection, the prosecutor stated that he intended to call defendant’s brother, Robert Garcia, as a witness. During his opening statement, the prosecutor did not refer to any specific anticipated testimony by Robert Garcia. Rather, he stated that information was “developed” which indicated that defendant was involved in the shooting. Further information led investigators to Rosa Mayorga, defendant’s former girlfriend and the mother of his child. When Mayorga was “contacted, ” she was in a black pickup truck with Robert Garcia. “Contained in that black pickup truck was the registration and ownership information for the Hummer. And as a result of that, an investigation was opened up into Robert Garcia, and he was ultimately contacted by the police. He gave a statement, and ultimately he was prosecuted for his involvement in this matter. At an earlier time. [¶] [Defendant] was still at large. Robert Garcia was prosecuted initially as [sic] assault with a deadly weapon, but later for murder as an aider and abettor. And he has been actually brought down from state prison by the People for the purpose of having to testify. He ultimately pled guilty to an offense in that matter, and he is serving prison time.” The defense made no objection to this portion of the opening statement.
When Robert Garcia was called to testify, he was sworn but remained silent when asked his name. His attorney informed the court that she had the impression that he would refuse to answer any questions. The court and counsel held an unreported chambers conference. Afterward, the prosecutor called another witness.
A day or two later, a hearing was held out of the presence of the jury. Garcia was recalled. When the prosecutor asked his first question, Garcia’s attorney informed the court that Garcia would not be answering any questions. The court informed Garcia that it was not aware of any privilege that would allow him to refuse to testify, and ordered him to answer the question. Garcia’s attorney again stated that Garcia would not answer any questions. She stated that she had informed him that he did not have a Fifth Amendment privilege and had advised him “about contempt of court.” Nevertheless, she said, Garcia had “chosen not to respond to the court’s order” that he answer the question.
In support of its ruling that Robert Garcia had no Fifth Amendment privilege to refuse to testify, the court recited the following: Robert Garcia was arraigned as a codefendant on August 17, 2006. Defendant had not yet been arraigned. On June 12, 2007, the case against Robert Garcia was dismissed on motion of the prosecution because a necessary witness was missing. The case was later refiled as to Robert Garcia. On August 24, 2007, Robert Garcia pleaded guilty to assault with a deadly weapon and admitted personal use of a firearm. He was sentenced to six years in state prison. He did not appeal before the time to do so expired. At the time of the trial in this case, he was still serving his sentence.
The court then advised Garcia that he would be held in contempt of court if he refused to answer questions put to him and advised him of the penalty if he refused. Garcia responded that he understood. The prosecutor then posed a series of questions, to which Garcia did not respond, despite the court’s order to do so following each question. After Garcia failed to respond to five questions, the court asked Garcia’s attorney again if it was Garcia’s intention to remain silent as to all questions. She responded that it was, and the court found Garcia in contempt.
The court offered defense counsel the opportunity to question Garcia, but he declined. He then informed the court that if Garcia were to be called back to testify before the jury, he would request that the court limit and clarify the questions the prosecutor would be permitted to ask. The court agreed. Following an unreported chambers conference, the court and counsel recapitulated the resolution of defense counsel’s request for a limitation on the number and kinds of questions that the prosecutor could ask Garcia. Defense counsel did not object to the procedure of having Garcia recalled to the witness stand for further questioning.
When Garcia was recalled, he again remained silent when asked questions, despite being ordered by the court to answer. After the prosecutor had asked the agreed-upon questions, the court excused Garcia. The court explained to the jury that it had found that Garcia had no privilege to refuse to testify and that it had found him in contempt.
The following are the questions put to Garcia:
There was no violation of defendant’s Sixth Amendment right to confront adverse witnesses.
Under the confrontation clause of the Sixth Amendment, a criminal defendant has the right to confront and cross-examine any witness who testifies against him. (Crawford v. Washington (2004) 541 U.S. 36, 42.) Defendant contends that the procedure the court used violated his Sixth Amendment right to confrontation because the court allowed the prosecutor, through his questions, “to lay out before the jury... Robert Garcia’s damning testimony” against him. He also contends that the prosecutor’s opening statement, coupled with his later questioning of Garcia, violated his confrontation rights.
If a witness has the right to invoke the Fifth Amendment privilege against self-incrimination, it is improper to require the witness to invoke that privilege in front of the jury because there is too great a risk that jurors will make inferences about the reason for the invocation which are damaging to the defense. (People v. Mincey (1992) 2 Cal.4th 408, 440-442.) However, where, as in this case, the court has determined that the witness has no privilege to refuse to testify, it is appropriate to allow the prosecutor to put the witness on the stand before the jury and have the witness refuse to testify or refuse to answer specific questions: Where the witness has no right to refuse to testify, the jury is entitled to draw a negative inference from the witness’s refusal to do so. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554; accord, People v. Morgain (2009) 177 Cal.App.4th 454, 466-468.) This procedure does not violate the confrontation clause. (People v. Morgain, supra, at pp. 463-466.)
However, it does violate the confrontation clause if the court permits the prosecutor to put any prior testimonial statement of the witness before the jury, unless the defendant had a prior opportunity to cross-examine the witness (Douglas v. Alabama (1965) 380 U.S. 415, 416-419; Crawford v. Washington, supra, 541 U.S. at pp. 53-56, 68-69), or to employ inflammatory or leading questions to “get before the jury what is tantamount to devastating direct testimony” (People v. Shipe (1975) 49 Cal.App.3d 343, 349 (Shipe)). The latter is what defendant contends happened in this case. This contention is unavailing for several reasons.
First, defendant did not preserve the issue for appellate review. Questions relating to the admissibility of evidence will not be reviewed on appeal absent a timely and specific objection. This applies to evidence which is claimed to violate the confrontation clause. (People v. Alvarez (1996) 14 Cal.4th 155, 186.) Here, defense counsel did not object to Garcia’s appearance before the jury on confrontation clause grounds, or on any other grounds. Nor did he object to any of the questions Garcia was asked, or to the prosecutor’s closing argument in which he asserted that the jury could infer from Garcia’s refusal to testify that he was protecting his brother.
This inference was, of course, the evidentiary purpose of presenting Garcia’s non-testimony. (See People v. Sisneros (2009) 174Cal.App.4th 142, 152.)
Second, even if the objection had not been waived, the contention is without merit because the questioning of Garcia was not “tantamount to devastating direct testimony.” (Shipe, supra, 49 Cal.App.3d at p. 349.)
In Shipe, the court determined that two witnesses, who had previously pleaded guilty as accessories to a murder allegedly committed by the defendant, had no privilege to refuse to testify at the defendant’s trial. Nevertheless, the witnesses refused to answer beyond a few preliminary questions. Over the defendant’s objections, the court permitted the prosecutor to ask one witness a series of 17 questions about the incident, including the following: “‘Is it not true that... you came back and saw the body of [the victim] and that [the defendant] was on top of him?’” “‘Is it not true that you saw [the defendant] remove the wallet of [the victim] and take the knife with him?’” “‘Is it not true that with the money that was taken from [the victim] you were present when [the defendant] made a purchase, using $100 of that money, of heroin?’” (Shipe, supra, 49 Cal.App.3d at p. 347.) The prosecutor also asked that witness if it was not true that he had previously described those events to the police and that he had told the prosecutor and his investigator that what he told the police was true. (Ibid.) The prosecutor asked the second witness several questions, including “‘Is it not further true... that in your presence [the victim] was stabbed multiple times by your brother, [the defendant]?’” (Id. at p. 348.) Through these leading questions, “the prosecutor placed before the jury information which overwhelmingly established [the defendant] as the murderer, provided a narcotics-related motive for the crime, and provided a basis for the inference that two witnesses had revealed this information in their statements to the authorities.” (People v. Burciago (1978) 81 Cal.App.3d 151, 164.)
The appellate court reversed the conviction and held that the prosecutor’s questions violated the defendant’s right of confrontation. (Shipe, supra, 49 Cal.App.3d at pp. 349, 355.) The court characterized the prosecutor’s questions as “flagrantly suggestive” and noted that a prosecutor may not, “under the guise of cross-examination, get before the jury what is tantamount to devastating direct testimony.” (Id. at pp. 349, 351.) In contrast, the questions Garcia was asked were not leading or “flagrantly suggestive.” (See fn. 7, ante.)
Moreover, the issue in Shipe as we perceive it is not so much that the questions were leading or inflammatory but that the prosecutor made it clear that the factual assumptions underlying his questions were supported by the witnesses’ out-of-court statements. (Shipe, supra, 49 Cal.App.3d at pp. 347-348.) Thus, the prosecutor effectively placed the witnesses’ statements before jury in the guise of questioning them as percipient witnesses to the crime. This is the same problem addressed by the United States Supreme Court in Douglas v. Alabama, supra, 380 U.S. 415 (Douglas), on which Shipe relied. (Shipe, at pp. 349-351.)
In Douglas, supra, 380 U.S. 415, a witness, Loyd, who had previously been convicted for his participation in the attempted murder charged against the defendant, refused to answer questions. The prosecutor “produced a document said to be a confession signed by Loyd. Under the guise of cross-examination to refresh Loyd’s recollection, the [prosecutor] purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, ‘Did you make that statement?’ Each time, Loyd asserted the privilege and refused to answer, but the [prosecutor] continued this form of questioning until the entire document had been read. The [prosecutor] then called three law enforcement officers who identified the document as embodying a confession made and signed by Loyd. Although marked as an exhibit for identification, the document was not offered in evidence.” (Id. at pp. 416-417, fn. omitted.) Loyd’s purported confession stated that he and the defendant planned to shoot at some trucks on a highway but that the defendant was the one who actually did the shooting. (Id. at p. 417, fn. 3.)
The court held that the alleged statement and the witness’s refusal to testify “created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” (Douglas, supra, 380 U.S. at p. 419.) The court also held that although the prosecutor’s “reading of [the] alleged statement, and [the witness’s] refusals to answer, were not technically testimony, ” the prosecutor’s reading of the alleged statement “may well have been the equivalent in the jury’s mind of testimony that [the witness] in fact made the statement.” (Ibid.) Because those inferences could not be tested by cross-examination, the quasi-testimony violated the confrontation clause. (Douglas, at pp. 419-420.)
Nearly 40 years after Douglas v. Alabama was decided, the United States Supreme Court clarified that the confrontation clause prohibits the use of any out-of-court testimonial statement by a witness unless the defendant has had a prior opportunity to cross-examine the witness. (Crawford v. Washington, supra, 541 U.S. at pp. 53-56, 68-69.) A formal statement to law enforcement officers is testimonial, as is a statement made during interrogation by law enforcement officers. (Id. at pp. 51-53.)
Here, in his opening statement, the prosecutor did say that after Garcia was “contacted” by the police, he gave a statement. However, unlike Douglas, supra, 380 U.S. 415, there was no evidence that Garcia had made any statement, and unlike both Douglas and Shipe, the prosecutor’s questions did not assert or even imply that the information sought in his questions had already been supplied by Garcia in an out-of-court statement. Furthermore, the court instructed the jury before opening statements that it was required to decide the case on the evidence and that “[n]othing that the attorneys say is evidence.” The court repeated those instructions after the close of evidence. Jurors are “almost invariabl[y]” assumed to follow the court’s instructions (People v. Morgain, supra, 177 Cal.App.4th at p. 469), and the record provides no reason to believe that the jury failed to follow these instructions. Consequently, in contrast to Douglas, there was nothing which “created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” (Douglas, supra, 380 U.S. at p. 419.) Accordingly, there was no confrontation clause violation.
Prosecutorial Misconduct
Defendant’s claim of prosecutorial misconduct also fails for several reasons. First, the issue was not preserved for review because there was no objection: A claim of prosecutorial misconduct is waived if the defendant fails to object and request an admonition, if an objection and admonition would have cured the harm. (People v. Crew (2003) 31 Cal.4th 822, 839.) Second, it fails on its merits in any event. The prosecutor was entitled to call Garcia as a witness and to require him to make his refusal to answer questions in the presence of the jury. (People v. Lopez, supra, 71 Cal.App.4th at pp. 1554, 1555-1556.) That being the case, it would not have been improper for the prosecutor to describe Garcia’s anticipated testimony in his opening statement. However, as noted above, the prosecutor did not describe Garcia’s anticipated testimony in his opening statement.
In addition, there is nothing in the record which indicates that the prosecutor knew or should have known that Garcia would refuse to testify. A person who has been convicted of a crime has no Fifth Amendment privilege not to testify once his conviction is final. (People v. Lopez, supra, 71 Cal.App.4th at p. 1554.) As far as the record shows, Garcia had not filed an appeal, and the time to do so had passed. Accordingly, his conviction was final. We see no reason to assume that the prosecutor somehow knew that Garcia would refuse to testify despite the absence of any privilege.
DISPOSITION
The judgment is affirmed.
We concur: /s/ Ramirez P.J./s/ King J.
“Did you go to the El Patio Bar in Rialto on Foothill Boulevard on April 16th, 2006?”
“Did you get to the bar in your black Ford F-150 pickup on that evening?”
“Did you meet your brother, Andres Garcia, at the bar on that evening?”
“Did you subsequently leave the bar in your F-150 and travel eastbound on Foothill [B]oulevard?”
“As you traveled on Foothill Boulevard did you follow your brother who was traveling in front of you eastbound on Foothill Boulevard?”
“Did you see the driver of the Camaro flash gang signs from the Camaro?”
“Did you retrieve a gun and fire shots at the Camaro from your black F-150?”
“And, sir, did you talk to your brother Andres about the shooting after it happened?”