Opinion
D040592.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR SERRATO, Defendant and Appellant.
Salvador Serrato was convicted by a jury of second degree murder with the personal use of a knife. (Pen. Code, §§ 187, 12022, subd. (b).) The court found Serrato had a prior prison conviction (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)) and a strike conviction (§ 667, subds. (b)-(i)).
On appeal, Serrato contends his conviction must be reversed because the testimony of a prosecution witness, Stephanie Loera, was coerced; defense counsel was ineffective in failing to object to Loeras testimony; defense counsel was ineffective in failing to test blood on a screwdriver found near the victim; statements of prosecution witness, Steven Vasquez, were improperly admitted as prior inconsistent statements; and the court improperly used the same conviction to impose a one-year enhancement under section 667.5, subdivision (b) and a five-year enhancement under section 667, subdivision (a)(1). We find merit only to Serratos last contention, otherwise we affirm the judgment.
FACTS
About 6:30 a.m. on July 1, 2001, Serrato fatally stabbed Eddie de la Cruz in the back yard of a residence in El Centro. Steven Vasquez lived in the residence with his brother and his brothers girlfriend. Stephanie Loera was also at the residence early that morning.
Sometime before 6:30 a.m., Vasquez was outside cleaning the front yard. De la Cruz, who was passing by, stopped to talk to Vasquez. A short time later, Serrato arrived and got into an argument with de la Cruz in the back yard while Vasquez continued to clean in the front yard. Loera was in the back yard.
According to Loera, Serrato and de la Cruz exchanged words about a bicycle. When Serrato called de la Cruz a "bitch," de la Cruz hit Serrato, causing a cut or scratch on his face. Loera did not see any weapons at this point. The ground was muddy and during the fight de la Cruz slipped. Serrato kicked de la Cruz while he was on the ground. Vasquez ran from the front yard and pushed Serrato off of de la Cruz. De la Cruz moved toward the house. Serrato said he was going to kill de la Cruz, took a knife out of his front pocket and stabbed de la Cruz. Serrato tried to stab de la Cruz a second time but failed to do so because de la Cruz fell. Serrato left.
According to Vasquez, he did not see the actual stabbing. After the fight, he told de la Cruz to leave and saw de la Cruz go to a weight bench by the door to the house. Vasquez had turned and was heading to the front yard when the stabbing occurred. Vasquez surmised that since de la Cruz was stabbed near the weight bench, Serrato must have moved from his position and stabbed de la Cruz. As Vasquez put it, "A ghost didnt do it."
After the stabbing, Vasquez yelled for his brother to dial 911 and call an ambulance. Vasquez and others carried de la Cruz to the curb across the street. Loera washed blood from the area where de la Cruz was stabbed. A small screwdriver was found on the ground across the street from Vasquezs residence near where de la Cruz had been lying. Vasquezs brother stated it was his screwdriver; he had removed it from his pocket because he was nervous.
According to Serrato, de la Cruz was "high" and "edgy." Serrato did not call de la Cruz a "bitch." Suddenly and without provocation, de la Cruz hit Serrato three or four times in the face. Serratos face started bleeding. Serrato saw something in de la Cruzs hand. Someone grabbed Serrato from behind while de la Cruz was still trying to come toward him. Fearing for his life, Serrato pulled out a knife from his front pocket, and swung it to scare de la Cruz. He did not realize he had stabbed de la Cruz. Serrato broke free and fled.
Serrato also presented evidence that the prosecution witnesses had been using drugs, in particular methamphetamine and heroin, were under the influence of drugs when interviewed by the police and that chronic use of these drugs can affect the ability to recall, can cause distortions in thinking, and make an individual subject to the suggestions by others as to how things occurred.
Police officers testified that witnesses did not appear to be under the influence when they were interviewed.
DISCUSSION
I
Coercion of Loeras Testimony
Serrato contends that he was denied a fair trial because he was convicted based on testimony coerced from Loera. In support of his claim that her testimony was coerced, Serrato points out that when first questioned by the police, Loera had been threatened with being charged as an accessory; she was "held in custody for the express purpose of securing her testimony at trial"; she was in custody for an extended period of time (12 days); she was held in contempt when she refused to testify despite an offer of immunity and until she agreed to testify; "she was threatened with a transfer from Juvenile Hall to an adult jail"; and she testified pursuant to an immunity agreement that provided for the dismissal of pending drug charges. Serrato contends "[t]he cumulative effect of these circumstances was to create a powerful compulsion for Loera to testify in a manner satisfactory to the prosecution, that is, to provide testimony supporting the allegations against Serrato."
Serrato contends the coerced nature of Loeras testimony is "demonstrated by the unexplained discrepancies between her statements to [the] defense investigator . . . made before these events, and her trial testimony." Serrato points out that when Loera was interviewed by the defense investigator about a month before being taken into custody, Loera denied seeing Serrato, the stabbing, or anything prior to seeing Vasquez and de la Cruz across the street from Vasquezs residence. Serrato characterizes Loeras statements to the defense investigator as "untainted by coercion." (At trial, Loera stated that she had lied to the defense investigator because she had been told to do so by someone she refused to name.)
Loera was 17 years old at the time of the murder. The police made several unsuccessful attempts to serve her with a subpoena prior to trial. During one of these attempts, when she was staying with her mother, Loera fled from the police. At another point, her mother reported Loera as missing. Eventually, Loera was located. When she was found, she had heroin in her possession, was arrested and detained in juvenile hall.
The People made a motion to require that Loera post a written undertaking of $75,000 or remain in custody until she testified in Serratos trial. Following a hearing, where the court determined Loera was a material but reluctant witness and that Loera was basically homeless, the court granted the motion. The courts order, dated May 16, 2002, provided that Loera, if she failed to enter an undertaking of $75,000, would be held in the custody of the juvenile hall until her 18th birthday, May 20, 2001, and subsequently be held in the custody of the Imperial County Sheriffs Office until she completed her testimony in the case. Originally, it was contemplated that Loera would soon be testifying. On May 28, the court conducted a review hearing. Loera refused to answer any questions, asserting her Fifth Amendment right not to incriminate herself despite the Peoples offer of immunity. The court found her in contempt and remanded her to custody of the juvenile authorities. The following day, the court entered an order remanding Loera to the custody of the sheriffs office because Loera had turned 18 years old, however, it does not appear that Loera was ever transferred from juvenile hall since the court had earlier stated that Loera should remain in the juvenile facility.
On May 30, the People entered into an immunity agreement with Loera, agreeing to dismiss the pending drug charges on the condition that Loera make herself available to testify and that she testify "fully, completely, accurately and truthfully." Loera then testified pursuant to the immunity agreement.
At trial, Serratos defense counsel did not object to Loeras testimony on the basis it was coerced.
The use of coerced testimony results in "a denial of the fundamental right to a fair trial in violation of federal constitutional principles." (People v. Medina (1974) 41 Cal.App.3d 438, 456.) A witness who testifies pursuant to an immunity agreement does not give coerced testimony if the agreement requires only that the witness testify truthfully and completely and does not require that the witness testify in a particular fashion. (Id. at pp. 454-456; People v. Pinholster (1992) 1 Cal.4th 865, 939.) "[A]lthough there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid" and does not offend due process. (People v. Allen (1986) 42 Cal.3d 1222, 1252.)
(A) Claim was Waived by Failure to Object
Serrato contends that an objection was unnecessary, arguing that a violation of his fundamental constitutional right to due process may be raised for the first time on appeal. We disagree.
As a general rule, there must be an objection below to the admission of evidence in order to preserve the issue for appeal. (See Evid. Code, § 353, subd. (a).) "The purpose of the waiver doctrine is to encourage a defendant to bring any errors to the trial courts attention so the court may correct or avoid the errors and provide the defendant with a fair trial." (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060; People v. Simon (2001) 25 Cal.4th 1082, 1103.) "`"`"The law casts upon the party the duty of looking after his legal rights and of calling the judges attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.""" (People v. Simon, supra, at p. 1103, quoting from Sommer v. Martin (1921) 55 Cal.App. 603, 610.) This rule applies to raising constitutional claims, including a claim that a witnesss testimony was coerced. (People v. Sully (1991) 53 Cal.3d 1195, 1216; Evid. Code, § 353, subd. (a); People v. Rudd (1998) 63 Cal.App.4th 620, 628-629.) The appellate court has discretion to consider constitutional issues raised for the first time on appeal when the issues involve purely questions of law. (Los Angeles Unified School Dist. v. State of California (1991) 229 Cal.App.3d 552, 555; People v. Brown (1996) 42 Cal.App.4th 461, 471.)
Here, whether Loeras testimony was coerced does not raise a purely legal question. Loeras immunity agreement, unlike the one in People v. Medina, supra, 41 Cal.App.3d 438, does not appear coercive on its face. Immunity agreements such as Loeras agreement that required only that she testify "fully, completely, accurately and truthfully" have been held to be valid.
Serrato cites other factors as supporting a conclusion Loera was coerced to testify in "a manner satisfactory to the prosecution, that is, to provide testimony supporting the allegations against Serrato," however none of these factors when considered either singly or as a whole require a conclusion, as a matter of law, that Loeras testimony was coerced. For example, one of the factors noted by Serrato is that Loera was taken into custody and remained in custody until she testified. He suggests Loera felt coerced into giving testimony favorable to the prosecution in order to obtain her release from custody. However, there was other evidence indicating that Loera was in custody due to pending drug charges, the custody relating to Serratos trial was originally contemplated to be very brief, and the entire period of custody was less than two weeks. In other words, there was evidence supporting a conclusion that Loeras custody was not likely to have coerced Loera into giving false testimony favorable to the prosecution. Since Serrato did not raise the issue below, the coercive nature of the various factors was not developed as a factual matter, the People were denied an opportunity to put on any contrary evidence, and the court never considered nor resolved the conflicting inferences to be drawn from the evidence Serrato cites now on appeal.
We conclude Serrato waived this issue by failing to object to Loeras testimony on the basis it was coerced.
(B) Effective Assistance of Counsel
Alternatively, Serrato contends his counsel was ineffective by failing to object to Loeras testimony as coerced.
To establish denial of the right to effective assistance of counsel, the
"defendant must show (1) that trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) that it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings." (People v. Taylor (1990) 52 Cal.3d 719, 731; see also People v. Fosselman (1983) 33 Cal.3d 572, 581.)
"`In evaluating defendants showing we accord great deference to the tactical decisions of trial counsel in order to avoid "second-guessing counsels tactics and chilling vigorous advocacy by tempting counsel to `defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . ."" (People v. Padilla (1995) 11 Cal.4th 891, 936, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Only when a critical tactical decision would not have been made by diligent, ordinarily prudent criminal trial attorneys will a reviewing court find ineffective assistance of counsel in the choice of trial tactics. (See People v. Weaver (2001) 26 Cal.4th 876, 926.) On appeal, "`[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention [that counsel provided ineffective assistance] must be rejected." (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)
Here, there could be a tactical reason supporting counsels decision not to object to Loeras testimony as coerced, that is, defense counsels conclusion that the objection would not succeed. Such a conclusion would be reasonable. As we noted above, the immunity agreement, on its face, was not coercive; it did not require Loera to testify in a particular manner, it only required that she testify "fully, completely, accurately and truthfully." While it is true that Loera was placed in custody prior to her testimony, it is also true that the custody was at least in part due to the fact that she was facing charges for being in possession of heroin. Moreover, the decision to place Loera in custody was amply justified by the evidence indicating that she had deliberately evaded service of a subpoena, could not be controlled by her mother, and was, essentially, homeless. In other words, the coercive nature of the custody was, if anything, to coerce Loera to appear for trial and to testify, not to testify in a particular manner. Additionally, defense counsel could give little credence to the "threats" to charge Loera as an accessory during the initial police interview or to move her from juvenile hall to the adult jail in light of the facts showing that the "threat" to charge Loera as an accessory was months before the trial, Loera was never so charged, and Loera was never moved to the adult jail. Finally, defense counsel could reasonably decide the fact that Loeras statements to the defense investigator denying any knowledge of the stabbing was not strong evidence that Loeras statements to the police were false or that she was likely to give false testimony at trial. At the time Loera made the statements, she was clearly a reluctant witness. Defense counsel could reasonably conclude, her statements were made for the purpose of avoiding appearing as a witness.
II
Ineffective Assistance of Counsel - Failure to Test the Blood on the Screwdriver
Serrato contends his defense counsel provided ineffective assistance when he failed to test the blood on the screwdriver found near where de la Cruz had been carried, across the street from Vasquezs residence. We disagree.
The decision not to test the blood on the screwdriver was reasonable. By not testing the blood on the screwdriver, defense counsel was able to argue to the jury the screwdriver might have been the object Serrato saw de la Cruz holding during the fight and might have inflicted the wound to Serratos face. Defense counsel could also point out that the police had not tested the blood on the screwdriver and therefore argue that the police had not conducted a thorough investigation. These arguments would have been lost if defense counsel had had the blood tested and was informed that the blood did not belong to Serrato. Preserving an argument beneficial to the defense represents a reasonable tactical decision.
III
Vasquezs Prior Statements to the Police
Serrato contends a police detective was improperly allowed to testify to prior consistent statements Vasquez made during police interviews. Serrato argues these statements constituted inadmissible hearsay. Serrato acknowledges that some of Vasquezs statements were inconsistent with his trial testimony, but points out the majority of his statements were not inconsistent or only inconsistent in minor matters. Serrato contends the erroneous admission was prejudicial since the prior consistent statements tended to bolster the credibility of Vasquezs trial testimony.
Serrato did not specifically object to any of the prior consistent statements. Serrato contends that an objection was not necessary to preserve the issue for appeal because during the in limine motions the court ruled that that if the People wanted to introduce a prior inconsistent statement of a witness, the People were limited to the prior inconsistent statement and could not "introduce the entire videotaped [police] interview." This ruling by the court did not eliminate the necessity for an objection. The courts ruling merely stated a broad proposition. It was Serratos responsibility to object when he believed the officer was improperly testifying; the court here had no sua sponte duty to discern which statements were consistent and to strike the offending testimony.
Moreover, even if we were to conclude that the issue could be raised on appeal, we would not reverse. Here, it was undisputed that Serrato stabbed the victim. The only issue was whether Serrato acted in self-defense. Not only did Vasquezs trial testimony and prior statements indicate that Vasquez did not see the actual stabbing but also Vasquezs testimony about the events leading up to the stabbing were corroborated by other witnesses. Vasquezs testimony that he intervened in the fight between Serrato and the victim and that the fight had ended before the stabbing was corroborated by Serrato himself, i.e., Serrato stated someone had grabbed him from behind and held him. Additionally, Loera testified Vasquez had intervened, ending the fight, prior to the stabbing; and the girlfriend of Vasquezs brother told the police she had seen people holding Serrato and de la Cruz apart prior to the stabbing. Moreover, Vasquezs testimony that the stabbing occurred by the front door of the residence, and not the area of the yard where Serrato testified the stabbing occurred, was corroborated by Loera, Vasquezs brother, and Vasquezs brothers girlfriend.
There is no reasonable probability the verdict would have been different had the officer not testified to Vasquezs prior consistent statements.
IV
Enhancements
Serrato contends the court erred in imposing both a one-year enhancement pursuant to section 667.5, subdivision (b) and a five-year enhancement pursuant to section 667, subdivision (a), based on the same prior conviction. The Attorney General concedes error occurred and we agree. (People v. Jones (1993) 5 Cal.4th 1142, 1150.) The court should have imposed only the greater enhancement, i.e., the five-year enhancement pursuant to section 667, subdivision (a).
DISPOSITION
We order the one-year enhancement imposed pursuant to section 667.5,
subdivision (b) to be stricken and the trial court is instructed to amend the abstract of judgment and forward a certified copy to the Department of Corrections. The judgment, as modified, is affirmed.
WE CONCUR: HALLER, J. and MCDONALD, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise specified.