Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR197316
Siggins, J.
A jury convicted Christopher Raynard Griffin of second degree robbery and found that he personally used a firearm. On appeal, defendant contends it was error for the trial court to admit evidence that third parties threatened the victim to prevent him from testifying. We conclude the evidence was properly admitted for its bearing on the victim’s credibility, and therefore affirm the conviction.
BACKGROUND
Prosecution Case
Seventeen-year old A.S. testified that he and a friend were victims of a robbery. A.S. and his friend walked to a store to buy snacks the afternoon of the crime. As they were walking home, A.S. noticed someone following about 20 feet behind them. The man, whom A.S. later identified as defendant, was wearing a black hooded sweatshirt, a beanie cap, jeans, shoes, and a red bandanna around his neck.
A.S. looked back and saw defendant pointing a gun at his back. Initially, the red bandana was covering defendant’s mouth, but it slipped off a number of times. Defendant nudged A.S. with the gun, pointed the gun at A.S. and his friend, and told them to turn right at a side street. Defendant directed them behind a U-Haul truck parked near a fence. Waving his gun from a distance of two or three feet away, defendant ordered the victims to give him their clothes and jewelry. A.S. gave defendant his star earrings, shirt, hat, backpack and wristband. His friend turned over a jacket, a pair of shoes, and a phone. Defendant told A.S.’s friend that he knew his mother’s and sister’s names and where he lived. At trial, A.S. identified defendant’s brown and silver gun. He also identified as his a star-shaped earring the police recovered from defendant, and the shoes taken from his friend.
A.S. walked straight home and told his grandfather about the robbery. A.S.’s grandfather told him to “just chill” and “we’ll run into him again.” And so they did. Several days later, A.S. and his grandfather were on a bus when A.S. saw defendant board the bus with a companion. Defendant was wearing a red sweatshirt, A.S.’s earrings and the shoes taken from A.S.’s friend. A.S. told his grandfather that defendant was the person who robbed him. A.S.’s grandfather told him to stay calm. Defendant approached A.S., said “What’s up,” and asked A.S.’s grandfather if he was with A.S. A.S.’s grandfather replied “Why are you worried about it?” Defendant responded “You old bastard.”
Defendant and his friend got off the bus about two minutes before A.S. and his grandfather reached their stop. After A.S. and his grandfather got off the bus, they saw defendant walking towards the Marina Vista Apartments. They called the police. Police Corporal Brian Estudillo arrived almost immediately and drove A.S. and his grandfather towards the Marina Vista apartment complex. A.S. spotted defendant with a group of men outside the apartments, still wearing the red sweatshirt and shoes he wore on the bus. When Estudillo stopped his car the group took off running. Corporal Estudillo called for backup and, when other officers arrived, searched the building into which defendant had fled.
A.S. testified that he and his grandfather called the police, but A.S.’s grandfather testified that the bus driver initiated the call and told them to wait for the police at the bus stop.
Defendant was not apprehended, but in a back bedroom officers found a red hooded sweatshirt and a black beanie that matched the description of the beanie defendant wore during the robbery. The bedroom window was open and the window screen was on the ground outside. A loaded, chrome-colored Raven.25 caliber handgun with a wood handle, identified by A.S. at trial as the gun from the robbery, was found under a nightstand.
Later that day, Officer Joshua Caitham responded to a reported disturbance at the Marina Vista Apartments. As he drove by in his patrol car, Caitham saw defendant walking with another man. Defendant froze, then walked rapidly towards one of the apartments and pounded repeatedly on the door yelling “Open the door.” Officer Caitham arrested defendant. He was wearing the shoes and an earring taken in the robbery, and initially gave the arresting officer a false name.
Defendant denied robbing A.S., being at or climbing out a window at the Marina Vista complex, discarding clothes or a gun, having a gun, and wearing a red sweatshirt. He claimed he got the earrings and shoes from his friend Joell, who he said had a confrontation with A.S. about some shoes, a shirt and some earrings sometime earlier. He admitted saying “what’s up” to A.S. on the bus and calling him a “bitch.” Defendant claimed he and A.S. knew each other and used to smoke together.
The jury found defendant guilty of the second degree robbery count and found the firearm use allegation true. Defendant was sentenced to prison for 15 years. This appeal timely followed.
DISCUSSION
I. Background
Before A.S. testified, the prosecutor advised defense counsel and the court that A.S. had twice been threatened, first before the preliminary hearing and then by defendant’s brother on the first day of trial. The prosecutor acknowledged there was no evidence that defendant was behind the threats, but argued that evidence of the threats was relevant to A.S.’s credibility and asked the court to set the parameters for its admissibility. The court admitted the evidence over defense objections. It found the threat evidence was highly relevant to explain “the credibility or believability of this witness, who may be reluctant to testify, which I think is probably an understatement in this case,” and that it was not particularly prejudicial.
A.S. testified at trial that his friends warned him before the preliminary hearing that “the people know who you are or something like that,” referring to the robbery. This made A.S. “kind of” worried that someone might know his identity as the complaining witness. Then, the day before his trial testimony, defendant’s brother called A.S. a snitch in the hallway of the courthouse, told him to come outside and threatened to “kick [his] ass.”
Defense counsel asked the court for an instruction that the threats were not “relevant,” but she did not draft or propose a particular instruction. The court asked counsel whether she wanted the court to instruct that the evidence of threats was offered only for A.S.’s credibility, but cautioned that whether the defense wanted the court to highlight the testimony was a tactical decision. The prosecutor suggested that defendant could argue there was no evidence any threats were made at his direction. At that point defense counsel submitted the matter without further comment. The court ruled that defense counsel could argue that there was no evidence connecting defendant to the threats, but declined to give an instruction to that effect.
II. Analysis
Defendant contends the court erred when it admitted the evidence of witness intimidation because (1) there was no evidence that defendant had anything to do with the threats; (2) the evidence “served no rehabilitative purpose” because A.S. testified he was not afraid to testify; and (3) the evidence was unduly prejudicial. These contentions are meritless.
Defendant correctly notes that evidence of witness intimidation is inadmissible to show consciousness of guilt unless the threats can be connected to the defendant. (People v. Williams (1997) 16 Cal.4th 153, 200.) Here, however, the evidence was not admitted to show consciousness of guilt, but rather because it bore on A.S.’s credibility. For that purpose, it was unquestionably admissible. As explained by the Supreme Court, “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat.... [¶] Regardless of its source, the jury would be entitled to evaluate the witness’s testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’s fear.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.) Therefore, “[i]t is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.” (Id. at p. 1368; People v. Green (1980) 27 Cal.3d 1, 19-20; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.)
Seventeen-year-old A.S. was the sole eyewitness to the robbery. His credibility, therefore, was key. The trial court commented on A.S.’s reluctance to testify, noting that the term “reluctant” “is probably an understatement.” Although A.S. testified that he was “not afraid” and “I just don’t care,” he admitted that he was worried when he testified at the preliminary hearing because someone might know his identity. His grandfather also testified that A.S. was an intimidated and reluctant witness. Corporal Estudillo testified that the grandfather was very reluctant to participate, or to have his grandson participate, in the investigation.
In his closing argument, the prosecutor stressed A.S.’s credibility and said “everything about [A.S.’s] demeanor, everything about the way he responded to questions, everything about the emotion that he showed, even though he was trying to act tough during most of it shows that this really happened to him, and that he had no doubt in his mind that the defendant was the one who robbed him.” The prosecutor also argued that A.S.’s testimony was all the more credible because he testified despite the threats. On the other hand, the prosecutor never argued or even suggested that defendant was responsible for the threats or that they in any way reflected consciousness of guilt. On this record, it was well within the trial court’s discretion to find the testimony was relevant and not unduly prejudicial. (See People v. Avalos (1984) 37 Cal.3d 216, 232.)
The record also puts to rest defendant’s claim that the evidence was not admissible to bolster A.S.’s credibility because it had not been shown that A.S.’s testimony was “inconsistent or otherwise suspect,” or that he was “reluctant or in any [way] affected by the alleged threats.” (See People v. Yeats (1984) 150 Cal.App.3d 983, 986.) Defendant challenged inconsistencies and discrepancies in A.S.’s testimony to argue he should not be believed. A.S.’s credibility was plainly a material issue and there were indications that he was a reluctant witness. The prosecutor was entitled, within the limits of Evidence Code section 352, to put on evidence that would help the jury understand and assess his demeanor on the stand.
We also find unpersuasive defendant’s contention that the evidence of threats was unnecessary, cumulative and more prejudicial than probative “because there was adequate other evidence to bolster [A.S.’s] credibility.” Defendant waived this peculiar contention by failing to raise it in the trial court. But it also fails on the merits. The law does not require the prosecution to forego important evidence supporting a witness’s credibility simply because there is other evidence that can persuade the jury that the witness is telling the truth. To the extent defendant complains the court should have instructed the jury that it could consider the evidence only for its bearing on A.S.’s credibility, he has forfeited that argument. Defense counsel vaguely requested an instruction that the threats were not relevant. But she did not seek an instruction that would limit consideration of the threat evidence to witness credibility, even after the court inquired whether she wanted such an instruction—and reminded counsel that this was a tactical decision. Defendant cannot now complain that it was error such an instruction was not given.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Jenkins, J.