Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR052658
Siggins, J.
A jury convicted defendant Charles McCovey of misdemeanor assault and making a criminal threat against his cousin, Alisa McCovey. We hold it was reversible error for the trial court to admit Alisa’s preliminary hearing testimony as an unavailable witness under Evidence Code sections 1291 and 240. We therefore reverse the judgment.
All further statutory references are to the Evidence Code unless otherwise noted.
Background
On May 27, 2005, the dispatcher for Hoopa Emergency Services received a 1:00 a.m. call from Alisa’s sister, S. S. said: “I just came from Charlie McCovey’s um, he’s trying to um he’s he’s running around trying to spotlight me I’m down Mill Creek and um, he’s my sister’s down there with a big cut on her head and she’s um, she’s bleeding very bad, (unintelligible) fallen asleep and um. . . . [¶] . . . [¶] He just tried to shoot me twice . . . [¶] [w]ith a um I think it was a twenty-two. . . . [H]e went and pulled her back into her into into his house and I just escaped from his house just now. . . . [¶] . . . [¶] And [I] don’t know what to do because he’s right now with a spotlight looking for me right now. But but I’m safe I’m just worried about my sister. . . . [¶] . . .[¶] . . . I went over there to see if my sister was alright [sic] and he um shot at me but he somebody pushed him away for him not to do that, then I was walking down the road and then he drove past me with his spotlight and I had to jump in the bushes and he shot at me he shot at me again.” When S. was asked if defendant was holding Alisa hostage, S. said she was “pretty sure” he was.
To avoid confusion, we will refer to Alisa and her sister by their first names (or, in the minor sister’s case, by her initial).
Hoopa Valley Tribal Police Sergeant Joseph Masten and Officer Darrel Mabre drove to defendant’s trailer in Hoopa to determine if Alisa was being held against her will or needed medical assistance. No one answered the door and defendant’s truck was gone. The officers determined Alisa was not there. Five days later Alisa told the sheriff’s department and tribal police that defendant assaulted her on May 27.
But Alisa refused to testify at trial. The following account is from her preliminary hearing testimony that was read to the jury. Alisa was a student at Humboldt State University. In May of 2005, after she moved out of her dormitory, defendant let her stay with him in his trailer. The two hung out together almost every day that month and used Ecstasy and nitrous oxide.
On May 27, defendant accused Alisa of stealing a bag of gold from him. He hit her on the head with his fist and pulled her hair. Then they got into defendant’s truck and drove to Brandon Mountain where they argued, but did not get into a physical altercation. Defendant then drove them to the Mill Creek River bar in Hoopa. There, he began to hit Alisa in the head with a folded knife. He opened the knife and stabbed her in the leg, pulled her hair, and stabbed her in the head. After 10 or 15 minutes they drove back to defendant’s trailer. When defendant was in the shower Alisa ran next door to her Uncle Marion’s house. Her hair and face were bloody. Defendant came to the house and said he would take Alisa to the hospital. Alisa agreed and went back to defendant’s trailer, where she went to sleep.
Alisa also testified that while he was driving, defendant said that “he was going to hurt” her. She said she did not get out of the truck when it stopped because she was scared, she “didn’t really want to run away,” and she “didn’t want to bring anyone else into it.”
Alisa initially testified she did not see defendant with a handgun. But, when Alisa was reminded that she told police when he first took her from his house to his truck defendant had a silver handgun, she testified that he did have a gun. She later testified that defendant threatened her with a gun when they were in his truck leaving her uncle’s house. When defense counsel reminded Alisa she had testified she returned to defendant’s trailer and went to sleep after she went to her uncle’s house, she said the gun threat actually occurred in defendant’s home. And when defense counsel pointed out that Alisa had testified she saw the gun in his truck, she said “[a]nd then too,” and said that she saw the gun in the truck when she and defendant were about to drive to Eureka together the following day.
On May 28, Alisa drove with defendant to a cousin’s home in Eureka. After they arrived they shared 12 canisters of nitrous oxide. Alisa went inside and spoke with family members, who said they knew what happened and wanted to help her. She did not seek medical help or call the police. She knew defendant was then in Eureka and she was scared. Alisa stayed in Eureka for about four days and then went to the Eureka Sheriff’s Department and the tribal police in Hoopa.
Tribal Police Officer Chance Carpenter testified that Alisa told him defendant had assaulted her and said to her, “I swear to God and to the devil that I will kill you.” Alisa showed Officer Carpenter bruises on her leg and behind her ear, and lacerations on her hairline, elbow, and leg. She told him that defendant hit her with a fire hose nozzle and punctured her leg with the blade of a foldable knife, that she bled profusely in defendant’s truck, that her hair was soaked with blood, and that blood got onto defendant. Officer Carpenter opined the injury to Alisa’s leg was consistent with a puncture wound.
When defendant was arrested on June 1, he appeared to be under the influence of a stimulant. A search of defendant’s truck revealed a knife, but no blood was detected either on the knife or in the truck. Nor was any gun found. Approximately three months later officers searched the area around defendant’s trailer and found approximately 68 rounds of rifle ammunition.
District Attorney’s Investigator Richard Grimm met with Alisa, the prosecutor, defense counsel, and a defense investigator on Friday, October 14, 2005, the last court day before defendant’s trial was to begin. Grimm testified that Alisa told them she had lied in her previous accounts about defendant’s actions and that her 15-year-old sister S. had injured her in a fight when Alisa fell on gravel. Alisa also said she told her sister Lavey that defendant “flipped out” and stabbed her, and that Lavey and the family reported defendant to the police. Alisa told Grimm she wrongly accused defendant of stabbing and threatening her because she was afraid he was going to tell her parents she had been drinking and using drugs. Alisa reported the family “resolved this in the Native American way” at a meeting in early September.
The court sustained a prosecution objection to defense counsel’s attempt to elicit Alisa’s further statement to Grimm that she believed her sister S. had previously assaulted another woman. As was discussed at a pretrial hearing, apparently defense counsel intended to show that S. was on probation for the prior assault, thereby suggesting a reason her sister would choose to implicate another person for the crime.
Defense investigator Catherine Truitt interviewed Alisa on October 18, 2005. Truitt testified that Alisa told her she had lied to the police because she was angry at defendant for wanting her to get off of drugs, and that she was very stoned and drunk when she accused him and did not want to go home to face her family and her addiction. Alisa told Truitt that her injuries were from falling on rocks while fighting with S., and that she was never taken to the river or stabbed or beaten by anyone. When S. was contacted by Truitt, S. also denied that defendant shot at her.
The jury found defendant guilty of misdemeanor assault and making a criminal threat, but acquitted him of assault with a deadly weapon and possession of a firearm. The court suspended imposition of sentence and placed defendant on probation for three years subject to terms and conditions including 85 days in county jail. This appeal followed.
On December 6, 2006, this court granted defendant’s request for permission to file a late notice of appeal.
Discussion
The Determination that Alisa was Unavailable as a Witness and the Admission of Alisa’s Preliminary Hearing Testimony Were Reversible Error
As we described in the preceding portion of this opinion, Alisa testified against defendant at the preliminary hearing but recanted that testimony in an interview on the eve of trial. As a result, the prosecution moved in limine to (1) admit Alisa’s preliminary hearing testimony in the event she invoked her Fifth Amendment privilege at trial; and (2) bar the defense from admitting evidence that she later recanted that preliminary hearing testimony. Defendant moved in limine that the court either (1) grant Alisa immunity so that she could testify at trial; or (2) if her prior testimony were admitted, to also admit her recantation. The court appointed conflict counsel to represent Alisa. She invoked the Fifth Amendment and refused to testify.
The following day the prosecution offered Alisa use immunity for her preliminary hearing testimony and her prior statements to police. Despite the offer, Alisa continued to assert a Fifth Amendment privilege and refused to testify. Over defense objections, the court allowed the prosecutor to introduce Alisa’s preliminary hearing testimony as evidence against defendant.
The record does not contain a written immunity agreement. We previously denied defendant’s motion to augment the record to include two printouts of e-mail messages regarding immunity discussions and a draft immunity agreement because these documents were not located in the superior court’s file, but construed the motion as a request for judicial notice and deferred consideration thereof to the decision on the merits. So construed, the motion is denied because the documents are not properly subject to judicial notice. (See §§ 451, 452.)
Analysis
Defendant contends it was error for the court to admit Alisa’s preliminary hearing because there was no adequate showing that she was unavailable as a witness. We agree.
Section 1291 creates a hearsay exception for certain prior testimony offered against a party in a former proceeding when the declarant is “unavailable as a witness.” The Evidence Code defines “unavailable as a witness” to encompass situations in which the declarant is “[e]xempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant. (§ 240, subd. (a)(1).)
Here, the People correctly (if implicitly) acknowledge that Alisa’s invocation of the Fifth Amendment did not alone make her exempt from testifying because the prosecutor offered her immunity for her prior statements. “The constitutional inquiry, rooted in logic and history, as well as in the decisions of this Court, is whether the immunity granted under this statute is coextensive with the scope of the privilege. If so, petitioners’ refusals to answer based on the privilege [are] unjustified . . . for the grant of immunity has removed the dangers against which the privilege protects.” (Kastigar v. United States (1972) 406 U.S. 441, 449.) The People instead contend that the immunity argument is a “red herring” in this case because Alisa’s refusal to testify was absolute. It was clear that “for whatever reason” and despite the grant of immunity, her refusal made her unavailable within the meaning of sections 1291 and 240.
The point is not well taken. The law is well settled that there must be more than the mere refusal of a witness to testify, even if there is no valid privilege to find the witness unavailable. As explained in People v. Smith (2003) 30 Cal.4th 581, 624, courts “have admitted ‘former testimony of a witness who is physically available but who refuses to testify (without making a claim of privilege) if the court makes a finding of unavailability only after taking reasonable steps to induce the witness to testify unless it is obvious thatsuch steps would be unavailing.’ ” (Ibid, italics added; see also People v. Francis (1988) 200 Cal.App.3d 579, 585; People v. Sul (1981) 122 Cal.App.3d 355, 364-365.)
While Alisa purported to claim privilege after the prosecutor offered her immunity, her invocation of the Fifth Amendment was ineffective because “the grant of immunity . . . removed the dangers against which the privilege protects.” (Kastigar v. United States, supra, 406 U.S. at p. 449.)
People v. Walker (1983) 145 Cal.App.3d 886 is illustrative. There the witness refused to testify, was threatened with contempt, and again refused. The court ordered the witness to testify, but he would not. Because the witness was already facing a 60-year prison term for charges in an unrelated case, the court recognized it would be futile to threaten to confine him until he agreed to testify and admitted his preliminary hearing testimony. (Id. at p. 894.) The appellate court affirmed, concluding that the trial court took reasonable steps to induce the witness to testify before it declared him unavailable as a witness. (Ibid.)
In Sul, in contrast, the witness testified at the preliminary hearing but refused to testify at trial and was sentenced to five days in jail for contempt. The defendant was retried after a mistrial, and again the witness refused to testify. The court found the witness in contempt, ordered him confined to jail until he testified, but immediately declared him to be an unavailable witness and admitted his preliminary hearing testimony. (People v. Sul, supra, 122 Cal.App.3d at pp. 358-359, 365.) The appellate court held the efforts at coercion were insufficient because the court: (1) denied the witness access to his attorney who could have explained to the witness that the trial court was threatening him with indefinite confinement; (2) admitted the prior testimony without waiting to see whether incarceration would induce the witness to testify; and (3) could have, but did not, threaten the witness with criminal contempt. (Id. at p. 366.)
The cases the People rely upon also confirm that the trial court did not adequately induce Alisa to testify. In People v. Francis, supra, 200 Cal.App.3d 579,the admission of prior testimony was appropriate because “[t]he trial judge exhaustively covered every possible alternative to coerce the testimony of [the recalcitrant witnesses] and repeated some steps more than once.” (Id. at p. 587.) Here, the trial court took no steps whatsoever to compel Alisa to testify after she was offered immunity and refused.
The People’s reliance on People v. Smith, supra, 30 Cal.4th 581 is also unpersuasive. The reluctant witness in that capital case, one of several rape victims, refused to testify against her assailant at the penalty phase of his murder trial. (Id. at p. 621.) The trial court questioned her under oath and asked whether additional time or prosecution for criminal contempt would change her mind. Because the witness was the victim of a sexual assault, the court had no power to incarcerate her for refusing to testify about the assault. (Code Civ. Proc., § 1219, subd. (b).) Under these “unusual circumstances,” the Supreme Court held the trial court had undertaken reasonable efforts to compel her testimony and could find her unavailable under section 240. (Smith, supra,at pp. 621, 624.)
Whether by design or inattention, the People’s appellate brief misconstrues Smith. They write: “In Smith, the Supreme Court upheld the introduction of preliminary hearing testimony of two witnesses based upon their unavailability. [Citation.] The court stated, ‘The fact that [the victim] was physically present in the courtroom and merely refused to testify does not preclude a finding of unavailability.’ [Citation.]” So far, we would agree, albeit they make no mention of the requirement that the court take reasonable steps to induce the witness to testify. (People v. Smith, supra, 30 Cal.4th at p. 624.) But their brief continues by stating: “The court noted that the prosecution’s burden was only to show that it had exercised due diligence by making reasonable efforts to obtain the witness.” (Italics added.) Again, Smith does say this, but in the context of a discussion that has nothing to do with the recalcitrant witness issue. Rather, this quoted language appears in the court’s separate discussion, some 10 pages earlier, of the admission of prior testimony of a different witness where the hearsay evidence was used to establish that the witness was abroad. Smith held that out-of-court statements offered by the prosecution were admissible for the non-hearsay purpose of showing good faith efforts to obtain the witness’s presence at trial.
No such efforts are evident here. Nor are the circumstances similarly “unusual.” The court appointed conflict counsel for Alisa, but beyond that, did nothing to coerce her testimony when she refused to take the stand after she was offered immunity. The court could have urged her lawyer to explain the legal import of the prosecution’s offer of immunity; it could have put her on the stand to impress upon her the gravity of the situation; it could have ordered her to testify; or it could have threatened her with contempt or fines. It did none of these things. “ ‘We do not suggest that any or all of the above procedures must be tried before making a finding of unavailability. They are, however, indicative of some of the resources which a trial court can bring to bear to secure the testimony of a recalcitrant witness.’ ” (People v. Francis, supra, 200 Cal.App.3d at p. 585.) Alisa’s mere refusal to testify was insufficient to make her an unavailable witness and allow admission of her preliminary hearing testimony.
Apparently Alisa was not even present in court when the prosecutor conveyed her postoffer refusal to testify.
Defendant’s right to confront and cross-examine Alisa should not have been so easily discarded, because Alisa’s testimony was critical to the prosecution’s case (and we note the People do not contend the contrary). The error was prejudicial and the judgment must be reversed. (See People v. Sul, supra, 122 Cal.App.3d at p. 359.) We therefore do not reach the various other issues raised by defendant.
Disposition
The judgment is reversed.
We concur: McGuiness, P. J. Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.