P. v. Nava

Filed 4/17/07 P. v. Nava CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Dane R. Gillette and Mary Jo Graves , Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

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Romulo Nava, Jr., appeals from the judgment entered after a jury convicted him of the first degree murder of Sebero Ruiz and found true special allegations a principal had personally and intentionally discharged a firearm causing death or great bodily injury and the offense had been committed for the benefit of a criminal street gang with the specific intent to further criminal conduct by gang members. Nava contends the trial court violated his constitutional right to confront witnesses against him by permitting the People to call as a witness Brenda Martinez (Martinez), who had been convicted in a separate trial of the second degree murder of Ruiz, and admitting into evidence Martinezs prior statements to the police after she had repeatedly stated I dont remember to questions about the crime posed by the prosecutor and defense counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Murder of Sebero Ruiz

As Ruiz and Sergio Guzman were walking to Family Farms Market to buy some beer, a blue car drove up to them. Nava, who was identified from a photograph by Guzman, was driving; another person was sitting in the front passenger seat of the car. Both the driver and the passenger asked Ruiz and Guzman where they were from. Neither Ruiz nor Guzman answered and instead continued walking into the market.

After purchasing beer, Ruiz and Guzman began to leave the market when Guzman stopped to buy lottery tickets. Ruiz walked outside the market. A moment later Guzman heard three shots being fired. Ruiz fell back into the store, where he died from multiple gunshot wounds to his chest and abdomen.

An in-store surveillance video showed Martinez entering the market with Gerardo Martinez (also known as Tank) four minutes after Ruiz and Guzman arrived at the store. Over the next few minutes Guzman could be seen on the tape standing by a lottery ticket machine in the market; Gerardo Martinez was then shown confronting Ruiz, hitting him and finally shooting him. A second surveillance video showed a small blue car drive through the parking lot shortly before Martinez and Gerardo Martinez entered the store and recorded Martinez getting into a blue Toyota approximately one minute after she had entered the market.

On the afternoon of the shooting a neighbor of Navas saw Nava driving a blue Toyota, which belonged to Navas father, with Martinez and Gerardo Martinez as passengers. Guzman subsequently identified Gerardo Martinez as the individual who shot Ruiz.

Nava was arrested the following day. Although he initially denied any involvement in the crime, he later admitted to the police he drove Martinez, who he described as his girlfriend, and Tank to the market after stopping to give Tank a ride. Nava told the police he waited alone in the car while Martinez and Tank went inside the store; sat with Martinez in the car after she had returned; and then heard gunshots, got scared and drove away after Tank ran back to the car holding a gun. Nava claimed he did not see Tanks gun before the shooting, insisted he did not know Tank was going to commit a crime and explained Tank threw the gun out one of the cars windows while they were driving back to Navas residence. Tank then called someone to come pick him up. A tape recording of Navas police interview was played to the jury at his trial.

Los Angeles Police Officer David Nunn, who had responded to a radio call following the shooting, testified the area where the market was located was claimed by competing gangs, Barrio Mojados (BMS) and 38th Street, who were engaged in a violent rivalry at the time of Ruizs murder. Los Angeles Police Department gang expert Jerry Ballesteros testified Gerardo Martinez or Tank had admitted to him he was a member of the BMS gang. In Officer Ballesteross opinion Nava was also a member of the BMS gang. Based on the circumstances of Ruizs murder, Ballesteros believed the crime was committed to promote or benefit the BMS gang.

2. Martinezs Statements to the Police and Her Trial Testimony

Martinez and Nava were charged in the same information with the murder of Ruiz, but tried separately. Martinez was tried first and convicted of second degree murder as an aider and abettor with true findings on the gun-use and street gang enhancements.

Navas trial was scheduled to begin following Martinezs conviction but before she was sentenced. The prosecutor advised the court he intended to call Martinez, who had testified on her own behalf at her trial, as a witness. The prosecutor also informed the court he had been authorized by the district attorneys office to ask the court to grant use immunity to Martinez, who was in custody, if that was necessary to obtain her testimony at Navas trial. The trial court deferred any ruling until Martinez discussed the matter with her trial attorney.

At a subsequent hearing Martinezs counsel advised the court he had consulted with his client, who told him she did not want to testify and refused to do so. The court asked if this was because of concern she might incriminate herself. Her counsel replied, No, because shes already been convicted. Martinezs counsel then explained Martinez had been assaulted in jail and feared her life would be in danger if she testified at Navas trial. The trial court advised Martinez, If the prosecution calls you as a witness, the court is going to order that you testify in this matter, barring any assertion of the Fifth Amendment. The court also told Martinez it could hold her in contempt if she refused to testify other than on Fifth Amendment grounds. After consulting with her attorney, Martinez personally informed the court she would not testify. Over Navas objection the court ruled it would allow the prosecutor to ask Martinez questions in front of the jury but once she refuses twice the court would intervene and cease any further questioning[.]

On direct examination Martinez testified the tattoo on her finger read Tony BMS and explained Tony was her former boyfriend and a member of BMS. Martinez denied being a member of BMS. She also testified she had known Nava for two weeks before the shooting. With respect to questions about the incident itself, however, Martinez answered, I dont remember to each one. Asked why she did not remember, Martinez replied, Because I dont remember. After nearly a dozen of these responses, the prosecutor said he had no further questions.

Navas cross-examination of Martinez was brief. Q. . . . Are you basically just refusing to answer the questions by saying you dont remember? A. I didnt understand that question. Q. Are you basically just refusing to answer the questions by saying you do not -- when you say you do not remember? A. Because I dont remember. Q. All right. If I were to ask you any questions about this incident would you answer them? A. No. The prosecutor asked several questions on redirect, with Martinez answering I dont remember yet again. Navas counsel asked for a sidebar conference, and the court stated, Lets stop it there. The prosecutor then indicated he would like to call Los Angeles Police Officer Elizabeth Rico, one of the homicide detectives who had investigated the Ruiz murder and the officer who had interviewed Martinez the day after Ruiz was killed, and to play for the jury the audio tape recording of that interview.

Following a recess for the weekend, the court held a further hearing on the status of Martinezs testimony and the prosecutors intention to offer her post-arrest statements to the police into evidence under Evidence Code section 1235.[1]Nava objected to the prosecutor playing the tape of Martinezs police interview on the ground admitting Martinezs statements would violate his Sixth Amendment right to confront and cross-examine the witnesses against him. He also moved to strike Martinezs direct testimony on the ground she had refused to answer his questions on cross-examination. The trial court denied the motion to strike, observing, There is nothing to strike. Based on Martinezs statements outside the presence of the jury concerning her reasons for refusing to testify, as well as her in-court testimony, the court found Martinez was being purposely and intentionally evasive, she was being uncooperative, and she was refusing to testify, and the court feels there is sufficient foundation for the purposes of being subjected to [California v.]Green [(1970) 399 U.S. 149] [90 S.Ct. 1930, 26 L.Ed.2d 489] impeachment. However, the court ruled the prosecutor could not play the entire tape for the jury and could question Officer Rico only as to those areas that had been covered in Martinezs direct examination.

Officer Rico testified she interviewed Martinez at the Newton Division police station after advising her of her right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) During the interview Martinez admitted she was a member of BMS, and specifically the 49th Street clique or subset of BMS. Martinez stated she was in a car with Nava when they saw two men near Family Farms Market, which was located on the border between BMS turf and the turf of its rival, the 38th Street gang. Martinez said she and Nava thought the two men were members of 38th Street. Nava shouted to the men, Where are you from? When neither man responded, Nava and Martinez yelled, Fuck Tramps ‑‑ a reference to the 38th Street gang ‑‑ and Its all about BMS.

According to Martinez, Nava was angry because the two men did not respond to his gang challenge. He and Martinez drove to the home of another BMS member, Tank. On the way Nava told Martinez he was going to pick up his homey and go back to the market and scare the two men who he believed were 38th Street members. When they arrived at Tanks house, Nava got out of the car and went inside. Martinez remained in the car. After a short time Nava returned with Tank, who got into the back seat. As he did so, Martinez saw he had a gun in his waistband. As they drove back to the market, Martinez heard Nava and Tank talking about the gun and the two men from 38th Street. Martinez said to Nava and Tank, I thought you guys were just going to scare them. Nava or Tank said, No, shoot them.

When they arrived at the market, Nava told Martinez to go with Tank and show him the two men. Martinez complied. She and Tank went into the market, and Martinez pointed out the two men Nava believed were rival gang members. After she had identified the men, Martinez went back to the car. A minute or so later she heard shots, and Tank ran back to Navas car and got into the back seat. He told Nava, Lets go, fool. Lets get out of here. Nava drove Tank and Martinez back to his house. On the way Tank threw the gun out the window.

Navas counsel did not ask Officer Rico any questions on cross-examination.

Following Officer Ricos testimony, the prosecution rested. Nava did not testify or present any other witnesses in his defense.

3. The Jurys Verdict and Navas Sentence

The jury found Nava guilty of first degree murder (Pen. Code, 187) and found true the special allegations a principal had personally and intentionally discharged a firearm proximately causing great bodily injury or death to the victim (Pen. Code,  12022.53, subds. (d) & (e)(1)) and the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)). Nava was sentenced to an aggregate state prison term of 50 years to life.

CONTENTIONS

Nava contends the trial court violated his due process right to a fair trial and his Sixth Amendment right to confront witnesses against him by permitting the People to call Martinez as a witness after it became clear she would refuse to testify and by admitting into evidence Martinezs statements to the police. He also contends the trial court committed prejudicial error by failing to instruct the jury concerning the appropriate treatment of accomplice testimony and by improperly instructing the jury not to consider why other persons were not being prosecuted for the murder of Ruiz.

DISCUSSION

1. Navas Right to a Fair Trial Was Not Violated by Any Purported Ineffective Assistance Provided by Martinezs Counsel

Although Martinez had been convicted of second degree murder in connection with the shooting of Ruiz prior to the commencement of Navas trial, she had not yet been sentenced and had not filed her appeal from the judgment. Therefore, she retained her Fifth Amendment privilege against self-incrimination. (People v. Fonseca (1995) 36 Cal.App.4th 631, 633 [a convicted defendant retains his Fifth Amendment privilege as to subsequent proceedings against other defendants at least until the time he no longer retains the right to file a timely notice of appeal]; see In re Robert E. (2000) 77 Cal.App.4th 557, 560.) Moreover, while Martinezs decision to testify at her trial waived the privilege for purposes of that proceeding, her testimony does not constitute a waiver for Navas separate trial, at least pending resolution of Martinezs appeal of her own conviction. (People v. Lopez (1980) 110 Cal.App.3d 1010, 1021.) Accordingly, Nava is correct that Martinezs counsel erred to the extent he advised Martinez she could not invoke her Fifth Amendment privilege and refuse to testify at Navas trial. However, Nava simply has no cognizable claim that the purported ineffective assistance of Martinezs counsel requires a reversal of his conviction, even if we were to assume that counsels apparent error somehow prejudiced him.[2](See, e.g., People v. Boyer (2006) 38 Cal.4th 412, 444 [defendant has no standing to assert a violation of anothers constitutional rights]; Pickard v. U.S. (D. Virgin Islands 2004) 312 F.Supp.2d 735, 741 [defendant lacked standing to assert ineffective assistance of codefendants counsel]; see also People v. Ford (1988) 45 Cal.3d 431, 439 [[t]he privilege against self-incrimination is, of course, personal and may be asserted only by the holder]; People v. Felix (1977) 72 Cal.App.3d 879, 885 [only the aggrieved party may challenge Fifth Amendment violations].)[3]

2. Admission of Martinezs Statements to Police Incriminating Nava in the Murder of Ruiz Did Not Violate Navas Sixth Amendment Right To Confront Witnesses Against Him

a. Governing law

i. California v. Green

The confrontation clause of the Sixth Amendment to the United States Constitution provides, In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.[4] In California v. Green (1970) 399 U.S. 149 [90 S.Ct. 1930, 26 L.Ed.2d 489] (Green II) the United States Supreme Court reversed the California Supreme Courts decision in People v. Green (1969) 70 Cal.2d 654 (Green I) and held the substantive use of a witnesss prior inconsistent statements under Evidence Code section 1235 did not violate the defendants right to confront witnesses against him. John Anthony Green had been charged with furnishing marijuana to Melvin Porter, a minor. At trial Porter, who was markedly evasive and uncooperative on the stand (Green I, at p. 657), testified Green had telephoned him and asked him to sell some unidentified stuff. Porter also testified he subsequently came into possession of 29 baggies of marijuana but claimed he could not remember how he had obtained the marijuana because he was taking LSD at the time. The prosecutor was allowed to read into the record portions of Porters prior testimony at Greens preliminary hearing in which he stated he had picked up the marijuana from its hiding place at the direction of Green. The prosecutor was also allowed to introduce an extrajudicial statement made by Porter to a police officer in which he asserted Green had personally delivered the marijuana to him. (Ibid.) The California Supreme Court held use of both prior statements violated Greens rights under the confrontation clause. Neither the opportunity to cross-examine Porter at the preliminary hearing nor the ability to question him at trial about the underlying incident was constitutionally sufficient. (Id. at p. 661.)

The United States Supreme Court disagreed, holding that neither the use of Porters testimony from the preliminary hearing, where Porter had been subject to cross-examination, nor the admission of his out-of-court statements to the police violated Greens constitutional right to confrontation because Porter was present and testifying at Greens trial: [T]he Confrontation Clause is not violated by admitting a declarants out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. (Green II, supra, 399 U.S. at p. 158.) The Supreme Court described the three-fold purpose of confrontation as ensuring reliability by means of the oath, exposing the witness to the probe of cross-examination and permitting the trier of fact to weigh his or her demeanor. (Ibid.) The Court recognized that the out-of-court statement may have been made under circumstances subject to none of these protections, but noted, if the witness either admits he or she made the prior statement, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible. (Ibid.) In addition, the Court found, although contemporaneous cross-examination may be preferable, the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial. (Id. at p. 159.) The presence of the witness on the stand at trial responding to questions satisfies the final purpose of the confrontation right, allowing the jury to evaluate the witnesss demeanor and, to some extent at least, his or her credibility. (Ibid.)

Although resolving the general issue of the constitutionality of Evidence Code section 1235, the Supreme Court in Green II identified an additional question to be addressed in the first instance by the California Supreme Court on remand: In the typical case to which the California court addressed itself, the witness at trial gives a version of the ultimate events different from that given on a prior occasion. . . . Here, however, Porter claimed at trial that he could not remember the events that occurred after [defendant Green] telephoned him and hence failed to give any current version of the more important events described in his earlier statement. (Green II, supra, 399 U.S. at p. 168.) The Court remanded for the state court to determine [w]hether Porters apparent lapse of memory so affected Greens right to cross-examine as to make a critical difference in the application of the Confrontation Clause in this case. (Id. at pp. 168-169.)

In his concurring opinion in Green II, Justice Harlan considered the question the majority returned to the California Supreme Court and concluded the confrontation clause was satisfied, notwithstanding Porters lack of recollection (real or contrived) because he was on the stand available for cross-examination. The fact that the witness, though physically available, cannot recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence. (Green II, supra, 399 U.S. at pp. 172-188 (conc. opn. of Harlan, J.).) In Justice Harlans view the confrontation clause, designed to prevent a trial by affidavits of an absent witness, is satisfied by producing the witness at trial for cross-examination. (Id. at p. 174.)

On remand the California Supreme Court came to the same conclusion as had Justice Harlan, holding the substantive use of Porters prior inconsistent statements at trial was permissible notwithstanding his purported lack of memory of the crucial events. (People v. Green (1971) 3 Cal.3d 981, 989-990 (Green III).)[5] Whether or not a witness is actually cross-examined, the fact the defendant has an adequate opportunity to carry out such an inquiry satisfies the confrontation clause. (Id. at p. 990.)

ii. Subsequent developments

In United States v. Owens (1988) 484 U.S. 554 [108 S.Ct. 838, 98 L.Ed.2d 951] the United States Supreme Court reached the issue it had left open in Green II; and it, too, adopted Justice Harlans view. The case involved the prosecution of an inmate for assaulting and seriously injuring a correctional counselor at a federal prison. While hospitalized, the counselor described the attacker to an FBI agent, named the attacker and identified him from a photographic array. At trial the counselor, whose skull had been fractured in the beating, causing severe memory loss, testified he remembered identifying the defendant as his assailant when speaking to the FBI agent, but admitted on cross-examination he could not remember actually seeing his assailant during the attack, did not recall that he had had numerous visitors other than the agent while he was in the hospital and did not know whether any of his visitors had suggested the defendant had committed the assault. The Supreme Court held, as Justice Harlan had urged in Green II, that the witnesss near complete memory loss, and the consequent inability of defense counsel to conduct any meaningful cross-examination concerning the basis for his out-of-court identification of the defendant, did not mean admission of that statement of identification violated the confrontation clause: [W]e agree with the answer suggested 18 years ago by Justice Harlan. [T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. (Id. at p. 559.) The weapons available to impugn the witness statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee. (Id. at p. 560.) When the declarant is present at trial and subject to unrestricted cross-examination, the traditional protections of the oath, cross-examination,  and the opportunity for the jury to observe the witness demeanor satisfy the constitutional requirements. (Ibid.; see also Delaware v. Fensterer (1985) 474 U.S. 15, 21-22 [106 S.Ct. 292, 88 L.Ed.2d 15] [the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities [forgetfulness or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness testimony]; People v. Perez (2000) 82 Cal.App.4th 760, 762 [a criminal defendant is not denied the constitutional right to confront a witness when the witness is present at trial and subjected to unrestricted cross-examination but answers I dont remember to virtually all questions]; People v. OQuinn (1980) 109 Cal.App.3d 219, 228 [no confrontation clause violation when witness was ostensibly unable to remember the circumstances of the crime or her statements to the police, [but] she was nevertheless on the stand and available for cross-examination].)

In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [124 S.Ct. 1354, 158 L.Ed.2d 177], the United States Supreme Court transformed Sixth Amendment jurisprudence by holding the confrontation clause bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.[6] In reaching that conclusion, the Court repudiated the decision in Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597], which had permitted the use of hearsay statements under the Sixth Amendment if they met an established exception to the hearsay rule or otherwise were inherently reliable. (Crawford, at p. 61 [Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendments protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability.].)

Although precluding the use of many types of testimonial hearsay previously admitted in criminal trials under state rules of evidence, however, the Crawford Court expressly reaffirmed its decision in Green II, supra, 399 U.S. at page 158. In footnote 9 of its opinion, the Court reiterate[d] that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. . . . (Crawford, supra, 541 U.S. at p. 59, fn. 9.)

b. Nava had a constitutionally adequate opportunity to cross-examine Martinez notwithstanding her feigned forgetfulness

Like the witness Porter who was present and testified at Greens trial, but who frustrated a fully effective cross-examination by falsely claiming a lack of recollection as to most of the significant events included in his statement to the police, Martinez was present at trial and testified as to several matters related to the charges against Nava ‑‑ she acknowledged knowing Nava and admitted her former boyfriend was a member of BMS ‑‑ but answered, I dont remember in response to questions about the events surrounding the shooting itself, matters she had discussed at some length in her tape-recorded statement to Officer Rico. (See Green II, supra, 399 U.S. at pp. 158-159.) Here, there is no dispute about the reliability of Officer Ricos testimony concerning the content of Martinezs post-arrest statements; indeed, Navas counsel objected to playing the tape of that statement to the jury. Thus, as in Green, the danger of faulty reproduction was negligible. (See Green III, supra, 3 Cal.3d at p. 990.) Moreover, the jury was able to observe Martinezs demeanor during her testimony, which included questions from both the prosecutor and defense counsel.

Finally, although on cross-examination Martinez stated she would not respond to any inquiries about the shooting itself, Navas counsel did not attempt to question Martinez about other matters that may have assisted Navas defense. In particular, counsel did not ask Martinez any questions about either her personal background, including her limited mental capacity, which might have undermined the reliability of her extrajudicial statements to the police,[7]or her own trial testimony, in which she denied that Nava and Tank had spoken about shooting Ruiz when they were traveling together to the market and also denied seeing a gun on Tank prior to the shooting. Nothing in the record suggests Martinez would have refused to provide additional biographical information to supplement the answers she gave on direct examination or declined to confirm the testimony she had given at her own trial a few days earlier. (Cf. Green III,supra, 3 Cal.3d at p. 990 [Porter was on the stand and under oath . . . . Defendant thus had the opportunity to cross-examine him, but in effect declined to do so].) Under these circumstances Martinezs presence at trial, on the witness stand and available for cross-examination, satisfied the requirements of the confrontation clause. (United States v. Owens, supra, 484 U.S. at pp. 558-660; see also People v. Cummings (1993) 4 Cal.4th 1233, 1292 & fn. 32 [admission of police officers record of interview with witness implicating defendant, pursuant to Evid. Code, 1237 (past recollection recorded), did not violate defendants confrontation clause rights notwithstanding witnesss testimony at trial he had no recollection of his conversation with either the police officer or defendant].)

The confrontation clause argument advanced by Nava in this case is virtually identical to the contention considered and rejected by Division Four of this court in People v. Perez, supra, 82 Cal.App.4th 760, a decision with which we agree. The witness in that case had responded to each of the prosecutors questions about the night of the crime or what she had told the police, I dont remember or I dont recall. (Id. at p. 766.) The witness did answer questions from one defendant relating to bias (denying, for example, she was a member of a gang), but repeatedly answered I dont remember to questions regarding the crime and her statements to the police. (Ibid.) Analyzing the confrontation clause issue Presiding Justice Charles Vogel explained, The witness Gutierrez was not absent from the trial. She testified at length at trial and was subjected to lengthy cross-examination. The jury had the opportunity to observe her demeanor, and the defense cross-examined her about bias. Even though she professed total inability to recall the crime or her statements to police, and this narrowed the practical scope of cross-examination, her presence at trial as a testifying witness gave the jury the opportunity to assess her demeanor and whether any credibility should be given to her testimony or her prior statements. This was all the constitutional right to confrontation required. (Ibid.)

A contrary result is not required by either Douglas v. Alabama (1965) 380 U.S. 415 [85 S.Ct. 1074, 13 L.Ed.2d 934] or People v. Rios (1985) 163 Cal.App.3d 852. In Douglas the witness, an accomplice who had been convicted at an earlier trial for his participation in the crime, invoked his privilege against self-incrimination and refused to answer any questions. The trial court then permitted the prosecution to read excerpts from the accomplices alleged confession that incriminated Douglas. The United States Supreme Court, after first holding the confrontation clause of the Sixth Amendment is applicable to the States, held the admission of the accomplices extrajudicial confession violated the defendants right to confront witnesses against him: In the circumstances of this case, petitioners inability to cross-examine [the accomplice] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. (Douglas, at p. 419.) Although Nava insists Martinezs repeated response I dont remember is tantamount to the complete refusal to testify at issue in Douglas, it is precisely this difference between a witness who invokes his or her privilege against self-incrimination and is therefore truly unavailable for any questioning and one who responds to some questions and then disingenuously claims a failure of recollection that is the foundation for the decisions in Green II, supra, 399 U.S. 149, and Green III, supra, 3 Cal.3d 981, and in United States v. Owens, supra, 484 U.S. 554.

Similarly, in People v. Rios, supra, 163 Cal.App.3d 852 the witness refused to answer any questions at all. Indeed, the primary holding in Rios is that Evidence Code section 1235 does not apply to the use of an out-of-court statement by a stonewalling witness [who] refuses to answer any questions because that provision requires a witness give testimony from which an inconsistency, express or implied, may be determined: Where, as here, the witnesses give no testimony, there is no evidence to support a finding of inconsistency. Section 1235 simply does not apply. (Rios, at p. 864.) As an alternate holding, the Rios court found the admission of a prior statement made by a witness who refuses to answer any question on direct or cross-examination denies a defendant his or her right to confront adverse witnesses. (Id. at pp. 864-865.) As discussed, Martinez did answer questions ‑‑ some with information about herself, others with assertions that I dont remember. (See People v. Perez, supra, 82 Cal.App.4th at p. 766 [Rios is distinguishable because there the witnesses refused to answer any questions].)

Confrontation clause cases involving the extrajudicial statements of recalcitrant witnesses obviously fall on a continuum, and it is our task to mark the constitutional dividing line. It may be correct that a witness who says I dont remember in response to comprehensive questioning that attempts to explore not only the facts of the underlying offense but also the witnesss background and biases falls on the Douglas v. Alabama, supra, 380 U.S. 415 side of that line. This is not such a case.

3. Any Instructional Error Was Harmless

a. The lack of an instruction regarding accomplice testimony

Nava argues, and the People agree, the trial court erred in failing to instruct the jury sua sponte with CALJIC Nos. 3.11 and 3.18[8]or any other instruction that advised it accomplice testimony must be independently corroborated and should be viewed with caution. (Pen. Code, 1111 [[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . .]; People v. Tobias (2001) 25 Cal.4th 327, 331; see People v. Andrews (1989) 49 Cal.3d 200, 214 [requirement of corroboration applies to accomplices out-of-court statements when those statements are used as substantive evidence of guilt].) However, because there was sufficient corroborating evidence introduced at Navas trial, that error was harmless. (People v. Sanders (1995) 11 Cal.4th 475, 534-535 [failure to instruct on accomplice testimony harmless error when there is sufficient corroborating evidence in record].)

Evidence that is sufficient to corroborate the testimony of an accomplice may be slight and entitled to little consideration when standing alone. [Citations.] . . . It is only required that the evidence tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth. (People v. Sanders, supra, 11 Cal.4th at p. 535; People v. McDermott (2002) 28 Cal.4th 946, 986 [corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone . . . . The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplices testimony, tend to connect the defendant with the crime].) Only a portion of the accomplices testimony need be corroborated. (See People v. Miranda (1987) 44 Cal.3d 57, 100.)

Here, Navas own statements to the police following his arrest, admitted into evidence through the tape recording of his interview, corroborated Martinezs out-of-court statements and connected Nava to Ruizs murder. Nava admitted he drove Martinez and Tank to the market, waited outside while the two of them went into the store and drove Tank and Martinez back to his home following the fatal shooting. In addition, Guzman identified Nava as the driver of the blue car who had shouted a gang challenge at Ruiz and him moments before the shooting. This evidence adequately corroborated the accomplice testimony.

b. CALJIC No. 2.11.5

Nava also argues the trial court erred in instructing the jury with CALJIC No. 2.11.5, which directs the jury not to discuss or consider why other individuals who may have been involved in the crime are not on trial with the defendant,[9]because that instruction is not proper in certain instances when an accomplice has testified for the People. (See, e.g., People v. Carrera (1989) 49 Cal.3d 291, 312 [defendant asserts person referred to by instruction, rather than defendant himself, is guilty of the crime]; People v. Williams (1988) 45 Cal.3d 1268, 1312-1313 [instruction might be understood to conflict with instruction that testimony of accomplice should be viewed with caution].) However, as the Supreme Court explained in Carrera, at page 312, footnote 10, if by use of the personal pronoun he rather than he or she, the instruction refers to an absent party who participated in the offense, not the accomplice who has testified at trial, it is not error to give the instruction. That is exactly what occurred here: The trial judge modified CALJIC No. 2.11.5 to address only a single person other than Nava who may have been involved in the crime and then identified that individual as he. Thus, any reasonable juror would have understood the instruction as referring to Gerardo Martinez (Tank), not to Brenda Martinez. In any event, Nava fails to identify any possible prejudice that may have resulted from the use of CALJIC No. 2.11.5 in this case; accordingly, any error in giving the instruction must be considered harmless. (See Cal. Const., art. VI,  13; People v. Cahill (1993) 5 Cal.4th 478, 511; People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

WOODS, J.

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[1] Evidence Code section 1235 provides, Evidence of a statement by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] section 770.

Evidence Code section 770 provides, Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [] (b) The witness has not been excused from giving further testimony in the action.

[2] As discussed, the prosecutor advised the court he was authorized to request Martinez be granted immunity if necessary to obtain her testimony. The trial court appeared willing to do so, but deferred ruling to see if Martinez, who had testified at her own trial, would again be willing to testify at Navas trial. Presumably, if Martinez had asserted her privilege and then was immunized, she still would not have answered questions out of her fear for her physical safety. Thus, it is by no means clear Martinezs failure to invoke her Fifth Amendment privilege in any way affected the course of Navas trial.

[3] Notably, Nava does not assert on appeal that his own counsel was ineffective for failing to correct the apparently erroneous advice given to Martinez by her lawyer.

[4] Article I, section 15 of the California Constitution provides, The defendant in a criminal cause has the right . . . to be confronted with the witnesses against the defendant. The state constitutional guaranty is essentially identical to the federal confrontation right. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1292, fn. 32; People v. Contreras (1976) 57 Cal.App.3d 816, 820.)

[5] Before reaching the constitutional question, the California Supreme Court first held the witnesss feigned forgetfulness and evasive answers to the prosecutors questions rendered his testimony materially inconsistent with both his preliminary hearing testimony and his statements to a police officer investigating the crime. Thus, the previous testimony and prior statements satisfied the requirements for prior inconsistent statements under Evidence Code section 1235. (Green III, supra, 3 Cal.3d at pp. 988-989.)

[6] The Court in Crawford v. Washington, supra, 541 U.S. at page 52, held that some statements qualify [as testimonial] under any definition and, therefore, although identifying several possible definitions, did not endorse any of them. However, in Davis v. Washington (2006) ___ U.S. ___, ___ [126 S.Ct. 2266, 2273-2274, 165 L.Ed.2d 224], the Court described the outlines of the term testimonial hearsay: Without attempting to produce an exhaustive classification of all conceivable statements -- or even all conceivable statements in response to police interrogation ‑‑ as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Fn. omitted)

[7] See In re Brenda Martinez on Habeas Corpus (Apr. 17, 2007, B189197), in which we explain that Martinez was evaluated by three psychologists to determine her competency to stand trial. Although she was found competent, Martinez possesses a borderline-to-below-average IQ with overall cognitive skills of a seven year old. Her Spanish vocabulary tested at the level of a seven year old, but her English vocabulary was that of a four year old. One psychologist opined that, due to her mental impairments, Martinez was the sort of person who willingly defers to the will of others.

[8] CALJIC No. 3.11 provides, You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect [the] [that] defendant with the commission of the offense. [] [Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out-of-court was true.] 

CALJIC No. 3.18 provides, To the extent that an accomplice gives testimony that tends to incriminate [the] [a] defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case. 

[9] CALJIC No. 2.11.5, as given by the court in this case, provides, There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of the defendant on trial.