P. v. Vecera
Filed 12/13/12 P. v. Vecera CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CLIFFORD
VECERA,
Defendant and Appellant.
A134123
(Contra
Costa County
Super. Ct. No. 050810572)
Defendant
Clifford Vecera was convicted following a jury trial of
pizza deliveryman and took money from him.
He argues for the first time on appeal that an accomplice’s testimony
violated his due process rights,
because she was improperly compelled to testify to a specific version of
events. We disagree and affirm.
I.
Factual and Procedural
Background
On the evening of February 11,
2008, defendant directed 18-year-old Marisa Mohamed to place an order for
several pizzas from a payphone at a convenience store in Concord and told her
to have the pizzas delivered to a hotel across the street. After Mohamed placed the order, defendant
informed her that he planned to rob the person who delivered the pizzas. Mohamed and another friend of defendant’s
(Mohamed’s pimp) stayed in a car while defendant crossed the street. Mohamed and her companion had an open
cellular phone line with defendant placed on speakerphone, so that it was
possible to hear some of what defendant was doing.
When
the pizza deliveryman arrived at the hotel, he parked his car near the room
where he had been told to deliver pizzas.
He tried to deliver pizzas to the room but was interrupted by defendant,
who came up from behind him. Defendant
pointed a gun at the deliveryman and demanded the pizza and all the victim’s
money. The victim handed over around $23
in one dollar bills, along with the pizzas.
Defendant walked away, and the victim followed him, demanding the return
of the pizzas and his money. Defendant
then pulled a gun out of his pocket and shot the victim.
At
this time, Mohamed heard “[a] loud pop,†and the cellular phone line that had
been open with defendant went dead.
About three minutes later, defendant called and told Mohamed to meet him
at a nearby fast food restaurant. After
Mohamed arrived at the restaurant, she saw defendant come out of the restroom
and noticed that he was no longer wearing the jacket he wore earlier. Defendant stated that he had taken $20 from
the pizza deliveryman, but that the deliveryman started chasing him to try to
get his money back, so defendant shot him.
Police
arrested Mohamed four months after the robbery, and she gave a statement to
police describing her and defendant’s involvement in the crime.
Defendant
was charged by amended information with second degree robbery (Pen. Code,
§§ 211, 212.5
title="">[2]—count 1),
with an allegation that he personally discharged a firearm causing great bodily
injury (§ 12022.53, subds. (b)-(d)); and assault with a firearm
(§ 245, subd. (a)(2)—count 2), with an allegation that he
personally used a firearm (former 12022.5, subd. (a)(1)). The district attorney also alleged, with
respect to both counts, that defendant personally inflicted great bodily injury
(former § 12022.7, subd. (a)).
Finally, it was further alleged that defendant had suffered a prior
strike and a prior serious felony conviction, and that defendant was ineligible
for probation.
Mohamed
also was charged with second degree robbery and assault with a firearm. As discussed in more detail below, she agreed
after the preliminary hearing to testify at trial under a grant of immunity
against defendant in order “[t]o have a clean slate and just start over.â€
Defendant
testified on his own behalf and denied shooting the victim. He admitted being with Mohamed and her pimp
on the night in question, but he claimed that it was the pimp who committed the
robbery.
A
jury convicted defendant as charged and found the enhancement allegations to be
true. Following a bifurcated bench
trial, the trial court found the prior conviction allegations to be true. The court sentenced defendant to a total of
31 years to life, and this timely appeal followed. By order dated May 4, 2012, this court
denied defendant’s request to augment the record with a reporter’s transcript
of opening statements.
II.
Discussion
Defendant argues in his opening
brief that his conviction violates the due process clause of the Fourteenth
Amendment to the United States Constitution, because accomplice Mohamed was
impermissibly under compulsion to testify in a particular fashion in violation
of the rule of People v. Medina
(1974) 41 Cal.App.3d 438, 455-456 (Medina).
prosecution to a witness on condition that he or she testify truthfully to the
facts involved. [Citation.] But if the immunity agreement places the
witness under a strong compulsion to testify in a particular fashion, the
testimony is tainted by the witness’s self-interest, and thus
inadmissible. (Medina[, supra, at
p. 455].) Such a ‘strong
compulsion’ may be created by a condition ‘ “that the witness not
materially or substantially change her testimony from her tape-recorded
statement already given to . . . law enforcement
officers.†’ (Medina, supra, 41
Cal.App.3d at p. 450.)†(
455.) “[T]he use of such tainted
testimony is a denial of the fundamental right to a fair trial in violation of
federal constitutional principles.†(
the other hand, although there is a certain degree of compulsion inherent in
any plea agreement or grant of immunity, it is clear that an agreement
requiring only that the witness testify fully and truthfully is valid. [Citations.]â€
(People v. Allen (1986) 42
Cal.3d 1222, 1252.)
Mohamed
entered into a written agreement with the district attorney’s office titled
“AGREEMENT TO PROVIDE TRUTHFUL TESTIMONY.â€
The agreement, which was admitted into evidence at trial, provided in
part that “[my] only obligation under this agreement is to testify truthfully
and completely in [defendant’s] case, regardless of who asks questions of
me. I shall not resort to silence, nor
feign any lapse of memory, in an attempt to avoid answering any
questions.†The agreement further
provided that if the judge presiding over the trial considered Mohamed’s
testimony to be truthful and complete, she would be permitted to plead no
contest to misdemeanor accessory to robbery (§ 32), with credit for time
served. On the other hand, if the judge
determined that Mohamed had not testified truthfully or completely, the People
would continue to prosecute her for second degree robbery.
Defendant
acknowledges that the written agreement
between Mohamed and the district attorney’s office “passed constitutional
muster.†He claims, however, that
Mohamed’s trial testimony established that she was in fact required to testify
in a particular fashion. This argument
is based on Mohamed’s answer to a single question on direct examination, which
drew no objection:
“[Prosecutor]: You spoke with your attorney about your
decision to cooperate in the prosecution of your friend Clifford Vecera?
“A. Yes.
“Q. And you’re aware that you’re still being
prosecuted for the robbery and your involvement; is that correct?
“A. Yes.
“Q. The only thing that is being promised to
you is that your statements in court can’t be used against you?
“A. Correct.
“Q. Now, Ms. Mohamed, are you—you read
through that contractual agreement that I entered into with you and your
attorney?
“A. Yes.
“Q. You read it?
“A. Yes.
“Q. And it includes a portion that says a
judge is going to determine whether or not you testified truthfully; is that
correct?
“A. Yes.
“Q. And if it is, in fact, found that you
testified truthfully, consistent with
exactly what you told the police, your charge of robbery would be reduced
to accessory to robbery as a misdemeanor?
“A. Yes.
“Q. And what’s the condition if you testify
untruthfully, Ms. Mohamed?
“A. That I’ll get charged with robbery.
“Q. Exactly where you are now, only you’ll be
sitting in that seat [presumably, defendant’s seat] again?
“A. Correct.
“Q. Have any other promises been made to you
whatsoever?
“A. No.â€
(Italics added.)
Defendant
claims that the italicized portions of the foregoing exchange reveal that
Mohamed understood her agreement to testify truthfully to mean that she was
supposed to testify “exactly†consistently with her statement to police,
regardless of its truth. He compares
this to the agreement found constitutionally impermissible in
under agreements that they “ ‘not materially or substantially
change’ †their testimonies from previous police interviews. By failing to object below that Mohamed’s
testimony should be excluded because her immunity agreement compelled her to
testify to a certain version of events, defendant forfeited this claim. (People
v. Boyer, supra, 38 Cal.4th at
p. 457.) We nonetheless will
consider the objection because defendant also contends that his attorney was
ineffective for failing to object at trial (People
v. Reyes (2008) 165 Cal.App.4th 426, 433-434); however, we reject the argument
on the merits because insufficient evidence supports defendant’s claim. (People
v. Maury (2003) 30 Cal.4th 342, 417.)
It
is no doubt true that the prosecutor expected Mohamed to testify consistently
with her previous statement to police, which she did.
prosecutor does not discuss the witness’s testimony with him beforehand and is
assured that it is the truth. However,
unless the bargain is expressly
contingent on the witness sticking to a particular version,†constitutional
principles are not violated. (
771, italics added.) To conclude that
there was such an express condition here, we would have to assume that
Mohamed’s written agreement to testify truthfully and completely did not
“constitute the sole and complete agreement between the People†and Mohamed, as
the agreement specifically provided, but that the true interpretation of the
agreement to testify “truthfully†was revealed in a one-word answer to the
prosecutor’s ambiguous and leading question.
“This claim is hypothetical and unverifiable.†(People
v. Reyes, supra, 165 Cal.App.4th
at p. 434 [no Medina error where
witness understood that he would breach agreement if it was found that his
third interview to police was untruthful].)
Practically, it is almost certain that the prosecutor phrased the
question the way he did because he believed Mohamed’s interview was truthful,
in which case there was no improper compulsion.
(Reyes at p. 434.)
To
be sure, it would have been preferable to have the prosecutor clarify that he
expected Mohamed to testify consistently with her police interview because she
had been truthful when she previously spoke to police. In People
v. Fields (1983) 35 Cal.3d 329, for example, a witness who had entered into
a plea bargain under which she agreed to testify for the prosecution admitted
on cross-examination that if she told a story that differed from a previous
statement to an investigator, this would be a violation of her agreement. (Id.
at pp. 359-360.) On redirect
examination, the witness confirmed that her previous statement had been
truthful, and that she had never been instructed to testify as to a particular
“ ‘ “story.†’ †(
38 Cal.4th 412, a witness testifying pursuant to an immunity agreement
admitted on cross-examination that he would be prosecuted if his testimony was
inconsistent with what he previously told the district attorney. (Id.
at p. 455.) The witness then clarified
on redirect that he understood that he was to testify truthfully, and that he
was never directed how to testify. (
Had defendant objected below on Medina
grounds to the prosecutor’s unclear question, the trial court could have
permitted the prosecutor to clarify the nature of the plea agreement.
Assuming
the question is clear, defendant is correct that here, by contrast, the
prosecutor did not seek specific confirmation that Mohamed was to testify
consistently with “exactly†what she told the police because her previous
statement was, in fact, truthful. We
agree with respondent, however, that the absence of such clarification does not
compel reversal here.
name="_ftnref6" title="">[6] When we review Mohamed’s response to a single
question in context, the record does not demonstrate that the witness was
required to testify consistently with her previous statement, regardless of its
truth. (People v. Garrison, supra,
47 Cal.3d at p. 770.) The written
agreement that Mohamed signed stated that she was to testify “truthfully and
completely,†with no specific reference to her prior statement. She confirmed on the stand that she had read
the agreement, supporting an inference that she understood it. We also emphasize that the facts surrounding
the immunity agreement and their relevance to Mohamed’s credibility—a highly
relevant issue at trial—were fully presented to the jury, both through
cross-examination of Mohamed and by counsel in their
v. Allen, supra, 42 Cal.3d at
p. 1255, fn. 10.)
Because
we conclude that Mohamed’s agreement to testify was not improperly coercive, we
need not consider defendant’s argument that he was prejudiced thereby. Because the agreement was not improper, it
likewise follows that counsel was not ineffective for failing to object to
Mohamed’s testimony on that ground or to move for a mistrial, as defendant
claims. (People v. Maury, supra,
30 Cal.4th at p. 418.)
>
III.
Disposition
The judgment is affirmed.
_________________________
Baskin,
J.*
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
*
Judge of the Contra Costa Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1]
The victim was hospitalized for more than three months for his injuries. He was unconscious from the evening he was
shot (February 11) through March 20 and underwent multiple surgeries,
including one to remove his damaged spleen.
name="_ftn2" title="">[2]
All statutory references are to the Penal Code.
