P. v. Cortez

Filed 10/2/08 P. v. Cortez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSOLIDATED APPEALS from judgment of the Superior Court of

San Diego County, Raymond Edwards, Jr., Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part; reversed in part; remanded for resentencing.

I.

INTRODUCTION

A jury found Adrian Nathaniel Cortez and Jahaziel Fausto guilty of conspiracy to commit assault with a deadly weapon or with force likely to produce great bodily injury (Pen. Code,^[1] 182, subd. (a)(1), 245, subd. (a)(1) (count 1)) and first-degree murder ( 187, subd. (a) (count 2)). With respect to count 1, the jury found that each defendant committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). With respect to count 2, the jury found that that each defendant committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), each defendant was a principal in the offense, and at least one principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1), each defendant was a principal in the offense, and at least one principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1), and each defendant was a principal in the offense and at least one principal personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (d) and (e)(1). In addition, with respect to count 2, the jury found that Fausto personally used a firearm in the commission of the offense ( 12022.5, subd. (a)).

Cortez waived his right to a jury trial on two prior conviction allegations and admitted that he had suffered a prison prior ( 667.5, subd. (b), 668) and a strike prior ( 667, subds. (b)-(i), 1170.12). The trial court sentenced Cortez to a total term of 76 years to life in prison and sentenced Fausto to a total term of 50 years to life in prison.

On appeal, Cortez claims that there is insufficient corroboration of the testimony of two accomplices presented at trial to support his convictions. Cortez also claims that the trial court erred in instructing the jury not to consider why the accomplices were in custody. Fausto claims that the trial court erred in precluding a potential defense witness from testifying on the ground that the witness refused to submit to full cross-examination, invoking her privilege against self-incrimination. In a related claim, Fausto maintains that the prosecutor violated Fausto's constitutional right to present witnesses on his own behalf by improperly causing the witness to invoke her privilege against self-incrimination, leading the trial court to refuse to allow the witness to testify. Fausto also claims that the trial court erred in modifying a jury instruction that Fausto requested concerning imperfect self-defense. Both defendants also raise numerous claims pertaining to their sentences.

We reverse the judgment as to the defendants' sentences on count 1, vacate the defendants' sentences, and remand the matter for resentencing. We affirm the judgment in all other respects.

II.

FACTUAL BACKGROUND

A. The People's evidence

1. The murder

On October 16, 2004, Ignacio Manzo (Ignacio) was at a park in Chula Vista along with several friends and his brother, victim Arturo Manzo (Arturo). Arturo was a member of the Otay gang. At some point during the day, Arturo went to a nearby restaurant. Around the same time that Arturo was walking back from the restaurant to rejoin the group in the park, Fausto approached. Fausto began asking the people in the group, " 'Where are you from?' "^[2] Moments later, as Arturo approached the group, Fausto asked Arturo the same question. Arturo responded by saying, " 'Otay.' " Fausto then began shooting at Arturo with a gun. Ignacio ran for cover. Shortly thereafter, Ignacio saw Fausto leave the scene in a waiting car.

Arturo died as a result of the gunshot wounds he received. An autopsy revealed three gunshot wounds, two in Arturo's torso, and one in his arm. Police found a total of five shell casings from a .32-caliber gun within 15 feet of Arturo's body.

2. Accomplice testimony

Varrio Chula Vista (VCV) gang members Raymond Pacheco and William Parra testified at trial. Pacheco testified that in October 2004, he was a VCV gang member as were Cortez, whom he knew as "Trusty," and Fausto, whom he knew as "Bullet." Cortez was the leader of the VCV gang. Pacheco stated that in the Fall of 2004,a member of the Otay gang―a rival gang to VCV―shot VCV gang member Benjamin "Rocky" Moreno. On October 16, 2004, several VCV gang members held a meeting at which this shooting was discussed. Cortez, Pacheco, Parra, Fausto, and Jacob Sowder were among the VCV gang members who attended the meeting. At the meeting, Cortez asked whether anyone would be willing to shoot an Otay gang member in retaliation for the shooting of Moreno,

and Fausto and Sowder volunteered to do so. Parra agreed to drive. Cortez gave Fausto a gun. As the meeting disbanded, Fausto asked Pacheco if he wanted to go along with Fausto to the shooting. Pacheco responded in the affirmative.

Pacheco testified that he, Parra, Fausto, and Sowder left the meeting and got into Parra's car. Parra drove the group around looking for Otay gang members. When they saw several people standing around in a park, Parra parked the car. Pacheco saw Fausto get out of the car and approach the people who were standing in the park. Fausto spoke briefly to the people in the park. Pacheco then saw Fausto fire a gun at Arturo. Arturo fell to the ground, and Fausto fired more shots at Arturo while he was on the ground. Fausto ran back to Parra's car. Once in the car, Fausto said that he got "the guy from Otay."

Parra testified that on October 16, 2004 Cortez asked for volunteers to retaliate against the Otay gang for shooting Moreno. Parra stated that Cortez gave Fausto a gun, and that Fausto shot Arturo. Parra stated that he accompanied Cortez to Alec Pojas's house a few days after Arturo was shot. Cortez sold Pojas a gun that was similar in appearance to the gun that Parra had seen Cortez give to Fausto on the night Arturo was killed.

3. Gang evidence

Sergeant Eric Thunberg of the Chula Vista Police Department testified as an expert on criminal street gangs. Sergeant Thunberg explained various aspects of gang culture, including the notion that gang members are expected to assist the gang in retaliating against anyone who shows disrespect for the gang. Sergeant Thunberg described the history of the VCV gang, noting that it was first documented as a gang in the 1970s. The Otay gang is a rival gang to the VCV gang. Sergeant Thunberg opined that the charged offenses were committed for the benefit of the VCV gang, to retaliate against Otay for its shooting of a VCV gang member.

B. The defense

Fausto testified at trial. He admitted that he was a VCV gang member and that he had shot Arturo. Fausto denied that there had been a meeting of VCV gang members on October 16, 2004 at which Cortez requested that VCV members retaliate against the Otay gang. Fausto claimed that on the evening in question, he had been planning to attend a party he had learned about from his friend, Karina Lopez. Parra drove Fausto, Pacheco and Sowder around, looking for the party. Fausto saw a group of people in the park and got out of the car to see if anyone in the group knew the location of the party. Fausto testified that Arturo came toward him in an aggressive manner while shouting Arturo's gang's name. Fausto stated that he shot Arturo because he believed Arturo was about to physically attack him.

Cortez's sister and brother-in-law testified that Cortez was living in Murietta, 60 miles north of Chula Vista, in the weeks preceding and following the killing. Cortez's sister testified that Cortez attended a family barbeque and babysat for a neighbor in Murietta on the day and evening of the killing.

C. Rebuttal

The People presented evidence that on September 15, 2004 a Chula Vista police officer stopped a car that he suspected had been involved in a different shooting incident. The car was registered to Moreno. Cortez and Moreno were in the car. During that contact with police, Cortez fled the scene.

III.

DISCUSSION

A. Cortez's claims

1. There is sufficient corroboration of the accomplice testimony presented at

trial to support Cortez's convictions

Cortez claims that there is insufficient corroboration of the accomplice testimony that the prosecution presented at trial to support his convictions for conspiracy to commit assault with a deadly weapon or force likely to produce great bodily injury ( 182, subd. (a)(1), 245, subd. (a)(1)) (count 1) and first degree murder ( 187, subd. (a)) (count 2).

a. Standard of review andgoverning law

Section 1111 provides:

"A conviction can not 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; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

"An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."

"To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.]' [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1024.) " 'Corroborating evidence . . . may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.' [Citation.]" (People v. Williams (2008) 43 Cal.4th 584, 636.) Thus, corroborating evidence need not itself constitute "substantial evidence" (People v. Johnson (1980) 26 Cal.3d 557, 578) of the defendant's commission of the offense. (E.g., People v. Abilez (2007) 41 Cal.4th 472, 505 (Abilez).)

On appeal, " 'The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.' [Citations.]" (Abilez, supra, 41 Cal.4th at p. 505.)

b. The accomplice testimony

Pacheco and Parra testified at trial as described in Part II.B., ante. The trial court instructed the jury that Pacheco and Parra were both accomplices to the offenses charged in counts 1 and 2.

c. The corroborating evidence

The People presented considerable evidence that VCV gang member Fausto killed Arturo in retaliation for the Otay gang's shooting of Moreno. Ignacio testified that he witnessed Fausto shoot Arturo. Sergeant Thunberg testified that on October 9, 2004, VCV gang member Moreno had been shot. Thunberg stated that this shooting, as well as "several other . . . shootings" had led him to conclude that there was an active conflict between the Otay gang and the VCV gang around the time Arturo was killed. Thunberg noted that Fausto was a documented member of the VCV gang. Sergeant Thunberg testified that the shooting death of Arturo was "definitely a gang-related crime, specifically in retaliation for a rival gang having shot one of its own members."

The People also presented evidence that Cortez was a member of the VCV gang. Pojas testified that he knew Cortez by the nickname "Trusty." Pojas agreed with the prosecutor that "a lot of VCV gang members" had been to Pojas's house, including Trusty. Pojas's room contained gang graffiti, including the name "Trusty" created by a VCV gang member. Cortez had a tattoo on the back of his head that said "Chula Vista" and one on his chin that said "CV." Sergeant Thunberg testified that members of the VCV gang often have tattoos identifying themselves as members of the gang. The People also introduced in evidence a jailhouse note that Cortez wrote on or about June 8, 2005 signed "Trusty. VCV GLS." Sergeant Thunberg testified that the "Grand Locos" were a "clique" within the VCV gang, and that members of that clique often used the abbreviation "VCV GLS" to refer to themselves.

Evidence that the shooting of Arturo was a retaliatory killing committed by a VCV gang member and that Cortez was a VCV gang member, although not by itself sufficient evidence of Cortez's guilt, corroborated accomplice testimony implicating Cortez in counts 1 and 2. (People v. Vu  (2006) 143 Cal.App.4th 1009, 1022 [evidence that defendant was gang member, that the motive for the killing was retaliation for a rival gang's killing of defendant's fellow gang member, and that the prosecution's gang expert testified that the crime was committed at the direction and for the benefit of a criminal street gang, was among the evidence corroborating accomplice testimony]; People v. Szeto (1981) 29 Cal.3d 20, 28 [accomplice's testimony was "corroborated by independent evidence that defendant had a motive to aid the killers in escaping punishment, namely, to assist fellow [gang members] in gaining revenge upon [rival gangs] for the earlier slaying of [fellow gang member"]; accord People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["Evidence of the defendant's gang affiliation─including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like─can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime"].)

In addition to the gang evidence linking Cortez to the charged crimes, the People presented evidence connecting Cortez to the murder weapon. Pojas testified that Cortez sold him a firearm a little less than a month after Arturo was killed.^[3] The People presented ballistics evidence that suggested that the firearm Cortez sold to Pojas was used to kill Arturo. Cortez's possession of the weapon after the killing constitutes evidence connecting him to the charged offenses. (See People v. McFarland (1971) 17 Cal.App.3d 807, 823, disapproved on another ground by Donald L. v. Superior Court (1972) 7 Cal.3d 592, 598 [evidence that defendant was present when accomplice attempted to sell murder weapon after murder corroborated second accomplice's testimony that defendant participated in robbery/murder, stating, "possession of part of the loot and the murder weapon is proper and sufficient corroboration [citation] involving an association near the time of the offense [citation]"]; accord People v. Horning (2004) 34 Cal.4th 871, 901 [evidence that police found parts of murder weapon on defendant's property after the murder constituted evidence tending to demonstrate that defendant was the killer].) Further, Sergeant Thunberg testified that Cortez "told [Pojas] to lie about the gun if [Pojas] was caught with it because it was the gun that Bullet [Fausto] from VCV had used to shoot Shrek [Arturo]. . . ."^[4] Evidence that Cortez knew that Fausto had used the weapon to shoot Arturo and that Cortez urged Pojas to lie to the police regarding this information increased the corroborating effect of the evidence as to both counts 1 and 2.

Finally, a June 8, 2005 jailhouse note written by Cortez constitutes evidence corroborating Cortez's consciousness of guilt evidence. Cortez wrote the note while he was incarcerated after having been arrested in this case. Cortez intended that the note be passed to fellow VCV gang member Mark Cabuzuela. In the note, Cortez wrote, "[I]f the cops go ask you any [questions] to [sic] say I was gone out of town and you don't know nothing[.] Just keep your mouth shut . . . .[^[5]] Much love and stay cee veed[^[6]] up from the feet up! STAY STRONG Trusty VCVGLS."

Pojas testified that Cabuzuela had come to Pojas's house along with Cortez on the day Cortez sold the gun to Pojas. The jury could have reasonably determined that in instructing Cabuzuela to keep his "mouth shut" and urging Cabuzuela to tell the police that Cabuzuela did not "know nothing," Cortez evinced a consciousness of guilt in that he was encouraging Cabuzuela to impede the investigation into Arturo's killing. (See People v. Hunt (1982) 133 Cal.App.3d 543, 560 ["letters [authored by defendant] were probative in that by urging his fiancee to give false testimony they showed defendant's consciousness of guilt"].) The letter constituted proper corroborating evidence of Cortez's consciousness of guilt for the offenses charged in counts 1 and 2. (See People v. Avila (2006) 38 Cal.4th 491, 563 [evidence of a defendant's consciousness of guilt may properly be considered as corroborative of an accomplice's testimony].)

In sum, the record contains more than "slight" evidence (People v. Richardson, supra, 43 Cal.4th at p. 1024) tending to corroborate Parra's and Pacheco's testimony connecting Cortez to the offenses charged in counts 1 and 2. We conclude that there is sufficient corroboration of the accomplice testimony presented at trial to support Cortez's convictions on both counts.

2. The trial court did not err in instructing the jury, pursuant to CALCRIM

No. 337, regarding the fact that Parra and Pacheco were in custody

Cortez claims that the trial court erred in instructing the jury, pursuant to CALCRIM No. 337, regarding the fact that witnesses Parra and Pacheco were in custody at the time of the trial. Cortez claims that under the circumstances of this case, CALCRIM No. 337 conflicted with another jury instruction that directed the jury to view incriminating accomplice testimony with caution.

We review Cortez's claim de novo. (See People v. Posey (2004) 32 Cal.4th 193, 218 ["The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law"].)

a. Factual and procedural background

The trial court instructed the jury pursuant to a modified version of CALCRIM No. 337 as follows:

"When William Parra and Raymond Pacheco testified, they were in custody. Do not speculate about the reason. The fact that a witness is in custody does not, by itself, make a witness more or less believable. Evaluate the witness's testimony according to the instructions that I have given you."

The trial court also instructed the jury pursuant to a modified version of CALCRIM No. 335 in relevant part as follows:

"Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence."

The trial court provided the jury with additional instructions regarding how to evaluate a witness's testimony. For example, the court instructed the jury pursuant to a modified version of CALCRIM No. 316 as follows:

"If you find that a witness has been convicted of a felony, you may consider that fact in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.

"If you find that a witness has committed a crime or other misconduct, you may consider that fact in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."

b. Governing law

" 'It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citations.]" (People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396.) "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words." (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)

c. Application

Cortez cites no authority, and we are aware of none, that indicates that the trial court should not instruct with CALCRIM No. 337 in cases in which accomplice witnesses testify. CALCRIM No. 337 informs the jury that the mere fact that a witness is in custody "does not by itself make a witness more or less believable." (Italics added.) CALCRIM No. 337 thus expressly limits its application to the jury's consideration of the custodial status of a witness. Further, CALCRIM No. 337 instructs the jury to apply the other jury instructions that the court provides in evaluating a witness's testimony. Under these circumstances, there is no reasonable possibility that the jury understood CALCRIM No. 337 to prevent or restrict it from applying CALCRIM No. 335, which instructed the jury to treat Parra and Pacheco's incriminating accomplice testimony with caution.

Cortez maintains that People v. Carrera (1989) 49 Cal.3d 291 (Carrera) and People v. Williams (1988) 45 Cal.3d 1268 (Williams), disapproved on another ground by People v. Guiuan (1998) 18 Cal.4th 558, support his claim. We disagree. The instruction at issue in Williams provided, "There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial. [] You must not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted."^[7] (Williams, supra, 45 Cal.3d at p. 1313.) The Williams and Carrera courts stated that a trial court should not give this instruction in cases in which the potential perpetrator is a witness for either the prosecution or defense. (Williams, supra, 45 Cal.3d at p. 1313; Carrera, supra, 49 Cal.3d at p. 312.)

A reasonable juror could interpret a prohibition on considering why a potential perpetrator is not being prosecuted as conflicting with an instruction to view an accomplice's testimony with caution. For example, a juror might reasonably view an accomplice's testimony with distrust on the ground that the accomplice was allowed to plead guilty to a lesser charge, but understand CALJIC No. 2.11.5 to preclude such consideration. (Carrera, supra, 49 Cal.3d at pp. 312-313 ["jury might have understood

[CALJIC No. 2.11.5] to preclude it from considering whether [grant of immunity] gave [witness] a strong incentive to testify favorably to the prosecution"].) We see no similar potential for conflict with respect to CALCRIM No. 337 in cases involving testifying accomplices, particularly in light of the restrictive language employed in CALCRIM No. 337, discussed above.

Accordingly, we conclude that the trial court did not err in instructing the jury pursuant to CALCRIM No. 337.

B. Fausto's claims^[8]

1. The trial court did not err in precluding a potential defense witness

from testifying on the ground that the witness refused to submit to full

cross-examination, invoking her privilege against self-incrimination; the

prosecutor did not improperly cause the witness to invoke the privilege

Fausto claims that the trial court erred in precluding a potential defense witness, Karina Lopez, from testifying, on the ground that Lopez refused to submit to full cross-examination by virtue of her invocation of her privilege against self-incrimination. We review independently whether the trial court properly determined that Lopez could validly invoke the privilege against self-incrimination. (See People v. Seijas (2005) 36 Cal.4th 291, 304 (Seijas).) We apply the abuse of discretion standard of review in determining whether the trial court erred in precluding Lopez from testifying on the ground that she indicated a refusal to respond to the proffered cross-examination. (See People v. Price (1991) 1 Cal.4th 324, 421 (Price), superseded by statute on another ground as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165 [trial court did not "exceed its discretion" in precluding witness from testifying where witness's unwillingness to answer certain questions on cross-examination "would impair effective cross-examination"].)

In a related claim, Fausto contends that that the prosecutor improperly caused Lopez to invoke the privilege against self-incrimination, thereby frustrating Fausto's constitutional right to present witnesses on his behalf. We assume for purposes of this decision that the de novo standard of review applies to this claim. (Seijas, supra, 36 Cal.4th at p. 304 [stating independent review standard of review " 'comports with this court's usual practice for review of mixed question determinations affecting constitutional rights,' " quoting People v. Cromer (2001) 24 Cal.4th 889, 901].)

a. Factual and procedural background

During the trial, outside the presence of the jury, Fausto's counsel indicated that he intended to call Lopez as a witness. Fausto's counsel stated that the prosecutor had informed him that Lopez had been a witness in a separate murder trial, and that she had "changed her story between what she told the police during [an] interview and what she ultimately said in the witness box." Fausto's counsel requested the court's assistance in "having Ms. Lopez counseled before she is called to testify." The trial court indicated that it would appoint counsel for Lopez.

Later that afternoon, outside the presence of the jury, Lopez's counsel informed the court that Lopez was willing to testify about the events in this case. Lopez's counsel stated that, in his opinion, Lopez had no privilege against self-incrimination with respect to the events at issue. However, Lopez's counsel stated that the prosecutor had informed him that the prosecutor intended to ask Lopez, " 'Isn't it true that you committed perjury in this previous case?' " Lopez's counsel stated that he believed Lopez had a Fifth Amendment right not to answer that question. The court indicated that it agreed with counsel.

The trial court then conferred with the parties regarding how to proceed. The court referred to several relevant appellate cases and summarized the issue as follows:

"Even though [Lopez] has no privilege as to this case, issues about her credibility are an issue whenever a witness testifies. So if she gave false testimony in some earlier case, that would be relevant as to whether or not the jury would believe her in this case. [] . . . [] And the question becomes if that testimony about her false testimony in the other case would incriminate her, whether she has a Fifth Amendment right, she does [sic]. [] The question then becomes since we know that ahead of time, how do we treat that? Do we allow her to assert the Fifth in front of the jury and then tell the jury that they can consider that in deciding the credibility of this witness; or do we say, when we get to that part, if she refuses to answer, then strike the rest of her testimony?"

Cortez's counsel suggested that the court allow Lopez to testify, and then allow the prosecutor to impeach her by presenting additional witnesses to testify regarding her testimony in the prior murder case. The court rejected this suggestion, noting that it would necessitate "a trial within a trial." The court discussed several related issues with counsel, including whether the court should instruct the jury regarding Lopez's unavailability and whether the court would allow Lopez to answer some questions, but not others. At the conclusion of this discussion, the court indicated that it would review the relevant case law and revisit the issue the following day.

Later that same day, the court had another discussion with counsel during which the court further described case law relevant to the issue of Lopez's anticipated invocation of her Fifth Amendment rights. The court stated that it was "wrestling with . . . how to deal with the defendant's right to present a defense when the defense knows that . . . as to a matter of impeachment, the witness is going to assert the Fifth . . . ."

The following day, outside the presence of the jury, Fausto's counsel clarified that Lopez would corroborate Fausto's testimony that he was en route to a party on the night of the killing. The prosecutor stated that he intended to ask Lopez whether, in the previous case, she had given statements to the police naming the defendant in that case as the shooter, but then testified at the trial in that case that the defendant was not the shooter, despite being shown a videotape of her prior statement to the police.

The court had additional discussions with the prosecutor, Lopez's counsel, and Fausto's counsel regarding the exact nature of the prosecutor's proposed cross-examination of Lopez, and whether the prosecutor's questions would give rise to a valid invocation of Lopez's privilege against self-incrimination. During this discussion, the court stated that the prosecutor would not be allowed to ask, "Isn't it true that when you were placed under . . . oath before, you lied as to who the shooter was?" The court reasoned that this question was unnecessary to effectively impeach Lopez, and would clearly require Lopez to assert her privilege against self-incrimination in front of the jury. The court decided that the safest way to proceed in light of these concerns would be to hold a pretestimonial hearing, outside the presence of the jury, at which the prosecutor could conduct the proposed cross-examination.

At the hearing, the prosecutor asked Lopez whether she remembered being involved in the prior case. Lopez stated that she refused to answer "any questions that you have that is [sic] not involved with this court case." The court asked Lopez's counsel, "Whether she was involved in that case is not a matter of which she has a Fifth Amendment privilege, is it?" Lopez's counsel responded, "Probably not. I have instructed her not to answer any questions about the [prior] testimony. That is why she answered the way she did. But whether she was . . . involved in it, I would agree I don't think is privileged." The court instructed Lopez to answer the prosecutor's question, and Lopez responded, "Yes, I was."

The prosecutor proceeded to ask Lopez whether she had been present at the scene of the murder in the prior case, whether she had given police a statement regarding that murder, and numerous other questions regarding Lopez's statement to the police, including whether Lopez had identified the shooter to police. Lopez refused to answer any of these questions, asserting her Fifth Amendment right not to incriminate herself.

The prosecutor asked Lopez whether she remembered attending the previous trial, being asked questions about the murder at issue in that case, and having taken an oath prior to testifying. Lopez responded in the affirmative to all of the prosecutor's questions. The prosecutor asked Lopez whether, during the previous trial, she had denied that the defendant in that case was the shooter, and denied that she had seen the defendant with a gun. The prosecutor also asked Lopez whether, during the previous trial, "she [d]enied [her] statements that [the defendant] said that he was going to shoot the victim." The prosecutor asked Lopez whether she denied having made a statement to the police, and whether she remembered that the videotape of her statement was played at the trial. Lopez refused to answer any of these questions, again asserting her constitutional right not to incriminate herself.

After the close of questioning, the court stated, "Based upon the witness's refusal to answer the questions which would be used to impeach her credibility in this trial, under People v. Apodaca [(1993)] 16 Cal.App.4th 1706 [(Apodaca)], I am of the view that this witness should not be allowed to testify."

Fausto's counsel stated that he opposed the court's proposed ruling, arguing that Apodaca was distinguishable because in Apodaca, "everything arose . . . out of the same case," while in this case, Lopez was not "in jeopardy for anything to do with this case" The court responded:

"Sure she is. She could be prosecuted for perjury in this case if she is lying. And that is going to be the argument that the DA is going to make: If she lied in the first case, she lied in this case, and she is nothing more than a person that goes around lying for gang members. [] And her testimony is material because the defendant's testimony that he went this way and that way because he was on the conversation [sic] with her, if the jury believes that, and that is why this witness is being called to support his claim that that is what happened, then it is material to the case, making it very well an act of perjury."

Fausto's counsel argued that since Lopez was "already in jeopardy of that sort of prosecution as a result of the testimony that she's already given, then really there is no jeopardy here in answering the questions that the prosecutor asked her." In responding to this argument, the court noted that the prosecutor had asked Lopez whether she was present at the shooting at issue in the previous case. The court continued:

"So the answer to that question, she has asserted her privilege. Let's say, for example, that she wasn't there, she told the cops that she was, then she got on the witness stand and said she was. And as it[] turned out, she wasn't, wouldn't the answer to that question incriminate her? She not only gave false information to the police officer who investigated the case, she then got on the witness stand and under oath told another lie."

b. The trial court did not err in concluding that Lopez validly

invoked her right not to incriminate herself

The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." (See also Cal. Const., art. I,  15 ["Persons may not . . . be compelled in a criminal cause to be a witness against themselves"].)

In Seijas, supra, 36 Cal.4th at page 304, the California Supreme Court outlined the case law interpreting these provisions:

"It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves. In an oft-cited case, the high court stated that this privilege 'must be accorded liberal construction in favor of the right it was intended to secure.' (Hoffman v. United States (1951) 341 U.S. 479, 486.) A witness may assert the privilege who has 'reasonable cause to apprehend danger from a direct answer.' (Ibid.; [citation].) However, 'The witness is not exonerated from answering merely because he declares that in doing so he would incriminate him─his say-so does not of itself establish the hazard of incrimination.' (Hoffman v. United States, supra, at p. 486.) The court may require the witness 'to answer if "it clearly appears to the court that he is mistaken." ' (Ibid.) 'To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' (Id. at pp. 486-487.) To deny an assertion of the privilege, 'the judge must be 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate." ' (Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.)"

"Consistent with these principles, our Evidence Code provides that when a witness grounds a refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it 'clearly appears to the court' that the proposed testimony 'cannot possibly have a tendency to incriminate the person claiming the privilege.' (Evid. Code, 404.)" (People v. Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).)

In People v. Maxwell (1979) 94 Cal.App.3d 562, 570-571 (Maxwell), the court considered whether a witness validly invoked the privilege against self-incrimination on the ground that her proposed testimony could expose her to a charge of perjury. In Maxwell, Russell, a witness, testified at a preliminary hearing regarding the defendant's commission of a crime. (Id. at pp. 565-566.) At trial, the defendant called Russell as a witness. The defendant asked Russell whether she had told the police the truth in a statement contained in the police report regarding the incident, whether Russell's preliminary hearing testimony had been truthful, and whether the defendant had in fact committed the charged offense. (Id. at p. 567.) Russell refused to answer all of the questions on the ground that the answers might incriminate her. (Ibid.) The Maxwell court concluded that the trial court properly sustained the witness's claim of privilege on the ground that she faced "possible exposure to charges of perjury and also because her testimony as to some matters would 'conflict' with her previous testimony at the preliminary hearing." (Id. at p. 571.) The court reasoned, "A witness who has testified in a prior proceeding is entitled to invoke this privilege and refuse to answer questions which might expose the witness to a prosecution for perjury by furnishing a link in the chain of evidence tending to establish guilt of that offense. [Citations.]" (Id. at pp. 570-571; see also Cudjo, supra, 6 Cal.4th at p. 617 ["because [the witness] had testified at the preliminary hearing, he could properly invoke the privilege to avoid exposing himself to a charge of perjury in that proceeding," citing Maxwell].)

In his offer of proof in this case, the prosecutor indicated that Lopez initially told the police who were investigating the murder in the previous case that she had seen the defendant in that case commit the shooting, but that at the trial in that case, Lopez testified that she had not seen the defendant commit the shooting. During the pretestimonial hearing in this case, the prosecutor asked Lopez questions regarding the events of the previous case, including whether she had witnessed the shooting at issue in that case. As the trial court recognized, the answer to this question could potentially incriminate Lopez with respect to her actions in the previous case, either by providing evidence that she provided a false statement to the police (Seijas, supra, 36 Cal.4th at p. 306 [witness validly invoked privilege against self-incrimination out of fear that testimony could establish that he lied to police about murder]), or by providing evidence that she had committed perjury (Maxwell, supra, 94 Cal.App.3d at pp. 570-571). The same analysis applies with respect to the other questions the prosecutor asked Lopez about the shooting at issue in the previous case.

Fausto acknowledges in his reply brief that if Lopez were required to respond to the prosecutor's questions, "she could be accused of making a statement inconsistent with either her police interview or her testimony and therefore be subject to perjury accusations," but argues that the prosecutor had "no right to impeach Lopez with any of the facts related to the [prior] shooting." Fausto maintains that the prosecutor had the right only to "establish historical facts that were already included in the trial record of the prior case ─ the facts that she gave two different statements." Fausto cites no authority, and we are aware of none, that supports the proposition that the trial court erred in failing to limit the prosecutor's proposed cross-examination in the narrow fashion he suggests.

Fausto cites People v. DeSantis (1992) 2 Cal.4th 1198, 1226 (DeSantis) and People v. Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain) as supporting the argument that the prosecutor's proposed cross-examination was "unnecessary to show the jurors that [Lopez] had credibility problems." However, neither case supports this proposition. In DeSantis, the Supreme Court concluded that a trial court had not abused its discretion under Evidence Code section 352 in precluding a defendant from impeaching a witness, Gary Masse, with the witness's alleged untruthfulness in a prior case. (DeSantis, supra, 2 Cal.4th at p. 1226.) However, the basis of the Supreme Court's holding was that the trial court could have concluded that the evidence lacked significant probative value since there was little evidence that Masse had actually lied in the prior proceeding. The DeSantis court broadly stated, "Had Masse indeed committed perjury in the [prior] proceeding, the evidence of that misdeed might have significantly buttressed defendant's case." (Ibid., italics added.)

In Quartermain, the Supreme Court considered whether a trial court erred in precluding a defendant from cross-examining a witness, David Younge, about whether Younge had previously bribed judges in separate criminal proceedings. (Quartermain, supra, 16 Cal.4th at p. 623.) The Supreme Court concluded that the trial court had not violated the defendant's constitutional right to confront adverse witnesses. (Id. at p. 624.) However, the basis of the Supreme Court's holding was not that the proposed cross-examination was irrelevant or improper. Rather, the Quartermain court concluded that because Younge's credibility had already been extensively impeached, the proposed cross-examination would not have caused the jury to "have received a significantly different impression of [his] credibility," as is required to establish a violation of the defendant's right to confrontation. (Id. at p. 624.) Indeed, the Quartermain court took it as undisputed that "judicial bribery reflects on a witness's veracity" (id. at p. 623), and concluded that the trial court had abused its discretion under Evidence Code section 352 in precluding the proposed cross-examination on the ground that it would have been too time consuming. (Quartermain, supra, 16 Cal.4th at p. 624.)

If Lopez had testified, the prosecutor's proposed examination concerning her statement to police and her testimony in the previous case would have been relevant to her credibility. Responding to these questions could have exposed Lopez to a perjury charge, or a charge of making a false statement to police. Accordingly, we conclude that

the trial court properly determined that Lopez validly invoked her privilege against self-incrimination.^[9]

c. The trial court did not abuse its discretion in precluding Lopez

from testifying

In Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735 (Fost), the court stated, "the right to cross-examination cannot be defeated by a valid claim of privilege, even a privilege as strong as that embodied in the Fifth Amendment." The Fost court reasoned:

"Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witness's testimony on direct. As stated in Witkin: 'In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations.]' [Citation.] This rule applies even 'where the refusal to answer is based on a valid claim of privilege.' [Citation.] [Fn. omitted.] Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf. Striking a witness's entire testimony is, of course, a 'drastic solution,' only to be employed 'after less severe means are considered.' [Citations.]" (Id. at pp. 735-736.)

The Fost court noted that such principles apply even where the witness is a defense witness in a criminal case:

"The logic of this rule applies as much to the situation in which the person who refuses to disclose is a defense witness as to that in which it is the defendant himself, as the refusal of a defense witness to submit to proper cross-examination may corrupt the factfinding process as much as the refusal to submit of the defendant himself. A criminal defendant's federal constitutional right to a fair trial, and specifically the Sixth Amendment right 'to have compulsory process for obtaining witnesses in his favor,' cannot be deemed to include the right to call a witness who cannot be subjected to proper cross-examination, either because of protections the witness enjoys under the shield law or for any other reason. [Citation.] There are, in short, exceptionally few caveats to the proposition that the right to introduce evidence necessarily implicates the responsibility to permit it to be fairly tested. [Footnote omitted.]" (Fost, supra, 80 Cal.App.4th at p. 736; accord Apodaca, supra, 16 Cal.App.4th at p. 1716 [stating that where defense witness properly invoked Fifth Amendment privilege at trial "[t]he appropriate remedy" was "to strike or disallow all the witness's testimony"].)

Similarly, in Price, supra, 1 Cal.4th at page 421, the Supreme Court stated that the trial court may preclude a witness from testifying where it is clear that the witness will refuse to submit to full cross-examination:

"If a witness frustrates cross-examination by declining to answer some or all of the questions, the court may strike all or part of the witness's testimony. [Citation.] From this rule it follows logically that if, as here, the court determines in advance that the witness will refuse to answer such questions, the court may decline to admit the testimony in the first instance."

In this case, the record indicates that the trial court carefully considered its options in attempting to balance Fausto's right to present witnesses in his own behalf, with the People's right to effectively cross-examine Lopez. The court considered relevant case law, discussed the issue extensively with all counsel, considered options other than precluding Lopez from testifying, and held a hearing concerning the proposed testimony. (See People v. Seminoff (2008) 159 Cal.App.4th 518, 527-528 [upholding striking of testimony of witness who repeatedly asserted Fifth Amendment rights where "court did not make a precipitous ruling on the issue or strike [witness's] testimony the first time she refused to answer a question; rather it entertained full argument from the parties"].)

Further, the proposed impeachment, although collateral to this issues in this case, was highly relevant to Lopez's credibility.

While Fausto claims that the prosecutor could have impeached Lopez in ways that would not have required her to invoke her Fifth Amendment privilege, the record reflects that the trial court considered having additional witnesses testify regarding Lopez's prior alleged untruthfulness, but rejected this option as necessitating a "trial within a trial."

Further, Fausto cites no authority supporting the proposition that the mere existence of possible alternative methods of impeachment requires the trial court to allow a witness to testify and refuse to submit to proper impeachment cross-examination.

We conclude that the trial court did not abuse its discretion in precluding Lopez from testifying at trial.

d. The prosecutor did not improperly cause Lopez to invoke her

privilege against self-incrimination

Fausto claims that the prosecutor improperly interfered with his constitutional right to present witnesses on his behalf by causing Lopez to invoke her privilege against self-incrimination.

Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right "to have compulsory process for obtaining witnesses in his favor." (See also Cal. Const., art I,  15 [providing criminal defendant with right to compel witnesses on his behalf].)

In In re Martin (1987) 44 Cal.3d 1, 30, the Supreme Court noted that a prosecutor may commit misconduct by interfering with a defendant's constitutional right to compel witnesses on his behalf:

"In order to establish a violation of his constitutional compulsory-process right, a defendant must demonstrate misconduct. To do so, he is not required to show that the governmental agent involved acted in bad faith or with improper motives. [Citations.] Rather, he need show only that the agent engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as 'to transform [a defense witness] from a willing witness to one who would refuse to testify . . . .' [Citations.]" (In re Martin, supra, 44 Cal.3d at p. 31.)

In In re Martin, the defendant brought a petition for habeas corpus in which he alleged that the prosecutor had interfered with his right to present witnesses at trial. (In re Martin, supra, 44 Cal.3d at p. 7.) In reviewing the evidence of the alleged interference, the Supreme Court noted that during the petitioner's trial, the prosecutor's investigator had arrested a defense witness, Stephen Aguilar, outside the courtroom, in the presence of other potential defense witnesses, immediately following Aguilar's testimony, which had been favorable to the defense. (Id. at p. 33.) Counsel for another potential defense witness, Charles Riley, stated that "[the] prosecutor . . . told him if Riley testified [the prosecutor] would file charges against [Riley]." (Id. at p. 36.) Riley stated that the prosecutor's investigator "told him that if [Riley] testified as Aguilar had, the same thing that happened to Aguilar would happen to him." (Id. at p. 37.) According to counsel for a third potential defense witness, the prosecutor informed him that if his client were to testify, "he would be prosecuted for any crimes his testimony disclosed." (Id. at p. 44.) A fourth potential defense witness refused to testify in light of "the prosecution's apparent disdain for people who testified for [the defense]." (Id. at p. 48.) On these facts, the Supreme Court concluded that the petitioner had carried his burden of demonstrating that prosecutorial misconduct had interfered with his right to present the testimony of witnesses at trial. (Id. at p. 51.)

In U.S. v. Vavages (9th Cir. 1998) 151 F.3d 1185, 1189-1190 (Vavages), the Ninth Circuit stated that "A defendant's constitutional rights are implicated only where the prosecutor or trial judge employs coercive or intimidating language or tactics that substantially interfere with a defense witness' decision whether to testify." However, " 'perjury warnings [from a prosecutor] are not improper per se and . . . 'the Sixth Amendment is not implicated every time a prosecutor or trial court offers advice regarding the penalties of perjury.' " (Id. at p. 1189.) "Among the factors courts consider in determining the coercive impact of perjury warnings are the manner in which the prosecutor or judge raises the issue, the language of the warnings, and the prosecutor's or judge's basis in the record for believing the witness might lie. [Citations.]" (Id. at p. 1190).)

Fausto claims that the prosecutor committed misconduct in two ways. First, Fausto claims that the prosecutor made "threats of prosecuting Lopez for perjury." The record does not support this assertion. The record does indicate that Lopez's counsel stated that the prosecutor informed him that the prosecutor intended to ask Lopez whether she had committed perjury in the previous case. Assuming for the sake of argument that the prosecutor made this statement, asking Lopez whether she had committed perjury in the prior case is different from threatening Lopez with a pe