Melchor
Filed
2/4/13 P. v. Melchor CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MOLLIE NORMA MELCHOR,
Defendant and Appellant.
F064342
(Super.
Ct. No. VCF252351B)
APPEAL from
a judgment of the Superior Court of
County. Gerald F. Sevier, Judge.
David D.
Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Michael P.
Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Mollie
Norma Melchor pleaded no contest to first
degree robbery (Pen. Code, § 211)
first degree burglary (§ 459), two counts of grand theft of a firearm
(§ 487, subd. (d)(2)), and elder or dependant adult abuse (§ 368,
subd. (b)(1)), and admitted a prior conviction allegation. The trial court sentenced her to eight years
in state prison.
On appeal,
Melchor contends that the trial court prejudicially erred when it denied her
pre-plea motion to dismiss the information based on violations of her
convictions be reversed and the case dismissed with prejudice. We disagree and affirm.
STATEMENT OF THE FACTS
On May 9,
2010, 81-year-old Israel Reyna was inside his home when three females came to
the door and asked about buying some plants from him. Reyna went outside to show the women the
plants, at which point he was grabbed from behind by a male and forced to the
ground. The man held a gun to Reyna’s
head and demanded his money. The man
removed Reyna’s wallet from his pants and took about $140. The man then removed Reyna’s belt and used it
to tie Reyna’s hands in front of him.
After awhile, when he felt it was safe to do so, Reyna got up and went
inside the house where he noticed a cell phone and two rifles were missing.
Detective
Kevin Kroeze spoke with Alexis Solis about the incident. Solis said that she was a passenger in a
truck along with Melchor and Tiffany Robinson; Julian Alderete was driving the
truck. On the way back from a trip to a
casino, Alderete drove the truck to a home outside Goshen, where he told the
three females to contact the “old man†at the residence to distract him and
that Alderete was going to hide in the bushes.
After the women made contact with the man in the residence, Solis saw
Alderete “put up his finger across his mouth as if to say be quiet or not say
anything.†Solis became scared and
returned to the truck. At one point, she
looked back and saw Alderete put a gun to the man’s head and force him to the
ground. Solis stayed near the truck with
Robinson. A few minutes later,
Melchor returned to the truck. On
redirect examination, Detective Kroeze testified that he believed that Solis
had said Melchor returned to the truck with a cell phone and wallet.
Detective
Kroeze spoke with Melchor on June 7, 2011, following her arrest on a warrant in
Kings County. Melchor was advised of and
waived her Miranda
She first claimed that when she arrived at the house, she did not know
what was going on, but she later admitted that Alderete knew the man and did
not want the man to recognize him.
Melchor told Detective Kroeze she had taken a box with jewelry from the
house.
PROCEDURAL HISTORY
On May 12,
2011, a criminal complaint filed in Tulare County charged Melchor and Alderete
jointly with various counts stemming from the robbery and burglary that took
place on May 9, 2010. Alderete was also
charged with additional crimes not involving Melchor. The preliminary hearing was scheduled for
both defendants on July 5, 2011, but Melchor was not able to be transported as
originally planned because she had pending matters in Kings County.
While
Melchor was awaiting her preliminary hearing, the prosecution went to trial
against Alderete and filed a motion on July 25, 2011, to compel Melchor to
testify in Alderete’s case, offering use immunity under section 1324. At a hearing on August 2, 2011, Melchor
objected, asserting that her Fifth
Amendment right could only be protected by a grant of transactional
immunity. The trial court granted use
immunity and ordered Melchor to testify because it believed she was adequately
protected.
At
Alderete’s trial, Melchor answered the prosecution’s questions, including that
she knew Robinson and Solis; that she had known Alderete for 40 years; and that
she had spoken to Detective Kroeze. When
she was asked if she had gone to a house in Goshen on May 9, 2010, with
Alderete, Melchor pled the Fifth Amendment and was directed by the trial court
to answer additional questions. After
the trial court assured her that none of her testimony could be used against
her, Melchor acknowledged that she had gone to the house in Goshen with
Alderete, Solis and Robinson and that everyone had gotten out of the car. Melchor testified that all of the women,
including herself, met with the old man and that Alderete was behind them. When Melchor was asked if she had seen
Alderete do anything, she said “no,†and refused to answer any more
questions. The trial court then found
her in contempt.
The
following day at trial, Melchor continued to assert her Fifth Amendment right,
with her own attorney further arguing for her right to transactional
immunity. After Melchor’s counsel
informed Melchor that she needed to answer the questions if she did not wish to
be held in contempt, Melchor stated that she would, but neither the prosecution
nor the defense made any further inquiries of her.
Melchor’s
preliminary hearing was then held on August 15, 2011; she was held to
answer. An information was filed August
25, 2011, charging Melchor with the same crimes she was earlier charged with,
this time individually.
On August
29, 2011, Melchor pleaded not guilty to the charges and denied the
allegations. That same day, Melchor
filed a motion to dismiss the
information pursuant to section 1099, which was heard and denied on September
15, 2011.
On October
13, 2011, Melchor withdrew her not guilty plea and pleaded no contest to the
counts in the information and admitted the prior conviction allegations
associated with one count. The trial
court gave an indicated sentence of eight years in state prison. At sentencing on December 14, 2011, the trial
court struck Melchor’s prior strike conviction and sentenced her to a total of
eight years in state prison.
Melchor
requested and was granted a certificate of probable cause.
Melchor contends that the trial court erred when it
denied her motion to dismiss the charges pending against her. Specifically, she claims that the trial court’s
order that she testify for the People in Alderete’s trial deprived her of her
Fifth Amendment right against self-incrimination. She also contends that the trial court’s
grant of use immunity, instead of transactional immunity, under section 1324
did not provide her with protection equivalent to that provided by the Fifth
Amendment. Finally, she claims that the
trial court was required to use the procedure set forth in section 1099. We disagree with each of her claims.
Fifth Amendment
Right Against Self-Incrimination
The Fifth
Amendment to the United States Constitution provides that “[n]o person … shall
be compelled in any criminal case to be a witness against himself .…†The California Constitution provides a
similar privilege: “Persons may not … be
compelled in a criminal cause to be a witness against themselves .…†(Cal. Const., art. I, § 15.) The privilege against self-incrimination
includes two facets: (1) the privilege of a defendant, in a
defendant, not to testify at all and (2) the privilege of a person, as a
witness in any proceeding, civil or criminal, to refuse to answer particular
questions which may tend to incriminate him or her in criminal activity. (Cramer
v. Tyars (1979) 23 Cal.3d 131, 137.)
On appeal,
Melchor first contends that forcing her to testify in Alderete’s trial violated
her Fifth Amendment right as a defendant not to testify in a criminal
proceeding. Melchor argues that, because
she had the same charges pending against her for the May 9, 2010, crimes
against Reyna as Alderete did, she, as a defendant and unlike an uncharged
witness, had an absolute right not to testify in the criminal matter against
Alderete.
Melchor
relies, inter alia, on Cramer v. Tyars,
supra, 23 Cal.3d 131, 137; United
States v. Echeles (7th Cir. 1965) 352 F.2d 892, 897; People v. Whelchel (1967) 255 Cal.App.2d 455, 460, as well as
Evidence Code section 930 for her contention.
But each authority relied upon by Melchor merely recognizes the
undisputed privilege of a defendant in a criminal proceeding against that
defendant not to be a witness against himself.
(See Cramer v. Tyars, supra,
23 Cal.3d at p. 137 [pursuant to the Fifth Amendment and the parallel
California Constitution provision, as codified in Evidence Code section 930,
“[i]n a criminal matter a defendant has an absolute right not to be called as a
witness and not to testifyâ€]; United
States v. Echeles, supra, 352 F.2d at p. 897 (original italics) [the Fifth
Amendment “gives any person the right to refuse to answer questions which might
tend to incriminate him†but also prohibits “any person who is on trial for a
crime from being called to the witness
standâ€]; People v. Whelchel, supra,
255 Cal.App.2d at p. 460 [under Fifth Amendment and parallel provision of
California Constitution, “no person shall ‘be compelled in any criminal case to
be a witness against himself.’â€].)
Evidence Code section 930 provides that, to the extent that such
privilege exists under the Constitution of the United States or the State of
California, “a defendant in a criminal case has a privilege not to be called as
a witness and not to testify.â€
Melchor
provides no authority for the position that an individual, who is a defendant
in a separate action, has a Fifth Amendment right not to be compelled to
testify against a defendant in another matter.
Melchor’s claim therefore fails.
Section 1324
Melchor
next contends that the use immunity granted her was not an adequate substitute
for the privilege against self-incrimination.
As noted, ante, the Fifth
Amendment also provides the privilege of a person, as a witness in any
proceeding, civil or criminal, to refuse to answer particular questions which
may tend to incriminate him or her in criminal activity. (Cramer
v. Tyars, supra, 23 Cal.3d at p. 137.)
California
and federal “immunity statutes†provide that a witness who invokes the Fifth
Amendment privilege against self-incrimination can be compelled to testify if,
upon the prosecutor’s request, the court grants the witness immunity from
prosecution based on the compelled testimony.
(§ 1324; 18 U.S.C. §§ 6002, 6003.)
Two kinds of immunity – use immunity and transactional immunity – have
constitutional sanction. Use immunity
protects a witness only against the actual use of his or her testimony and the
fruits of that testimony, whereas transactional immunity protects him or her
against later prosecution related to matters about which he or she testified. (People
v. Campbell (1982) 137 Cal.App.3d 867, 872; see also People v. Hunter (1989) 49 Cal.3d 957, 973, fn. 4;
U.S. 441, 449-453.) Use immunity may
overcome and replace the constitutional privilege only if, after the immunity
is granted, it leaves the witness in the same relative position, vis-Ã -vis
prosecution, as if the witness had simply claimed the privilege. (Kastigar
v. United States, supra, 406 U.S. at pp. 458-459.) The immunity must “give protection equivalent
to that which attends the refusal to testify about matters which
incriminate.†(People v. Campbell, supra, 137 Cal.App.3d at p. 873.)
Here the
prosecutor requested an order requiring Melchor to answer questions, based on
the prosecution’s offer of use immunity to the witness under section 1324. While earlier versions of section 1324
required a grant of transactional immunity when a witness claiming a privilege
against self-incrimination was compelled to testify (People v. Superior Court (Perry) (1989) 213 Cal.App.3d 536, 538, fn.
2), section 1324 was amended in 1996 to require that a witness with a valid
privilege against self-incrimination need only be granted use immunity before
being compelled by the court to testify.
(Stats. 1996, ch. 302, § 1, pp. 2266-2267; see Assem. Com. on
Public Safety on Assem. Bill No. 988 (1995-1996 Reg. Sess.) as amended Jan. 4,
1996, p. 1.) Section 1324 now reads, in
relevant part:
“In any
felony proceeding … if a person refuses to answer a question … on the ground
that he or she may be incriminated thereby, and if the district attorney of the
county or any other prosecuting agency in writing requests the court, in and
for that county, to order that person to answer the question …, a judge shall
set a time for hearing and order the person to appear before the court and show
cause, if any, why the question should not be answered …, and the court shall
order the question answered … unless it finds that to do so would be clearly
contrary to the public interest, or could subject the witness to a criminal
prosecution in another jurisdiction, and that person shall comply with the
order. After complying, and if, but for
this section, he or she would have been privileged to withhold the answer given
… by him or her, no testimony … compelled under the order or any information
directly or indirectly derived from the testimony … may be used against the
witness in any criminal case. But he or
she may nevertheless be prosecuted or subjected to penalty or forfeiture for any
perjury, false swearing or contempt committed in answering, or failing to
answer, … in accordance with the order.
Nothing in this section shall prohibit the district attorney or any
other prosecuting agency from requesting an order granting use immunity or
transactional immunity to a witness compelled to give testimony .…†(§ 1324.)
Melchor
argues that forcing her to testify under a grant of use immunity in Alderete’s
trial regarding the underlying facts of the charges pending against her
violated her privilege against self-incrimination because use immunity did not
provide her “protection equivalent to that which attends the refusal to testify
about matters which incriminate.â€
Melchor claims forcing her to testify allowed the prosecution numerous advantages
in her own upcoming trial: to learn whether Melchor would deny, or attempt to
explain, her statements to Detective Kroeze; to view her demeanor while
testifying; to inform the prosecution of whether she was likely to testify in
her own trial; and that any testimony by Melchor would enhance the
effectiveness of any future examination of her in her own trial.
We agree
with respondent that Melchor’s claim fails because it is entirely
speculative. Had Melchor chosen to
proceed to trial, she would have had an absolute right not to testify. And, had she chosen to testify at her own
trial, her testimony at Alderete’s trial would not have been admissible to
impeach her own trial testimony even if she had provided entirely
in part and dis. in part) [describing “true Fifth Amendment claims†as “the
extraction and use of compelled
testimonyâ€].) Additional claims by
Melchor about how the prosecution would use her testimony at Alderete’s trial
to their advantage are purely speculative.
Section 1099
Finally,
Melchor alleges an “additional†and “independent†ground requiring that the
trial court grant her motion to dismiss, namely that section 1099 is the
“exclusive†procedure for forcing her, as a defendant, to testify. Section 1099 provides:
“When two or more defendants
are included in the same accusatory pleading, the court may, at any time before
the defendants have gone into their defense, on the application of the
prosecuting attorney, direct any defendant to be discharged, that he may be a
witness for the people.â€
Section 1101 further provides that the order mentioned in
section 1099 “is an acquittal of the defendant discharged, and is a bar to
another prosecution for the same offense.â€
(§ 1101.)
Melchor
relies on People v. Yeager (1924) 194
Cal. 452, 488, for the proposition that a codefendant cannot be compelled to be
a witness for the prosecution unless the provisions of section 1099 “were put
in force.†But People v. Yeager involved a case in which the defendants were
jointly indicted and jointly tried. (
487-489.) The plain language of section
1099 further demonstrates that it applies only where defendants are jointly
indicted and jointly tried.
Because
Melchor and Alderete were tried separately, her argument fails.
The judgment is affirmed.
_____________________
Franson, J.
WE CONCUR:
_____________________
Gomes, Acting P.J.
_____________________
Poochigian, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] The
facts are taken from the preliminary hearing because Melchor pled no contest to
the charges.
