Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Los Angeles County Super. Ct. No. SA052445
Marilee Marshall & Associates, Inc., Marilee Marshall and Jennifer Peabody for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Alcliff Morgon Daley, appeals from the judgment entered following his conviction, by jury trial, for special circumstance first degree murder (during commission of attempted kidnapping and attempted robbery), with firearm enhancements (Pen. Code, §§ 187, 190.2, subd. (a)(17), 12022, 12022.53, subd. (b)). Sentenced to state prison for life without possibility of parole plus 10 years, Daley claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
On April 29, 2004, Dwane Godoy was selling DVDs from a parking lot at Slauson and Vermont, when Rohan McDermott and defendant Daley came by. Daley was one of Godoy’s regular customers. When Daley introduced McDermott, it turned out Godoy and McDermott knew each other from years’ ago. McDermott and Daley asked Godoy if he knew anyone who could get them some marijuana. McDermott wanted 100 pounds of marijuana, which Godoy testified would cost about $35,000. Godoy promised to check around.
All further calendar references are to the year 2004 unless otherwise specified.
Godoy made some phone calls and learned his friend, Troy Lewis, had 33 pounds of marijuana. That night, McDermott, Daley, Godoy, Lewis, Lewis’s uncle Dave, and Lewis’s girlfriend Karla DeDunn got together at Lewis’s grandmother’s house on 36th Street. Lewis had the 33 pounds of marijuana in DeDunn’s S.U.V. Lewis let Daley and McDermott examine the marijuana. McDermott had a Converse tennis shoe box which appeared to contain money. However, McDermott said they preferred to wait until they could buy the entire 100 pounds at one time. Later that night, Lewis called Godoy to say he had acquired the rest of the marijuana. Godoy testified he assumed Lewis was going to pay him a few thousand dollars for his role as the middleman.
The next day, April 30, Godoy, McDermott, Daley, Lewis and DeDunn again met at the house on 36th Street. Again, the marijuana in the back of DeDunn’s S.U.V. The four men went to the backyard. McDermott opened the lid of the Converse shoe box, revealing what appeared to be cash wrapped in plastic. He pulled some of it out, as if he were going to start counting it, but then he put the money back into the box and said he needed a scale in order to weigh the marijuana. McDermott suggested they go to Daley’s apartment to weigh the marijuana and complete the transaction.
DeDunn got into her S.U.V. and Lewis told her to just drive around with the marijuana. Lewis and Godoy went in Godoy’s car, while Daley and McDermott got into a third vehicle. Godoy told Lewis he thought Daley and McDermott were acting “funny” because they had now turned down two opportunities to complete the drug deal.
At one point the two cars stopped on the street near Manual Arts High School. McDermott told Lewis and Godoy to count the money right there and then hand over the marijuana, but they were interrupted when a police car drove by. Lewis got into McDermott’s car with Godoy following. The cars pulled over a second time near 51st Street, where Lewis got back into Godoy’s car. Godoy drove to Daley’s apartment complex, the Casa Grande Apartments at Yukon and 135th Street in Hawthorne. Lewis kept in cell phone contact with DeDunn.
Outside the apartment complex, Godoy and Lewis got into McDermott’s car, and McDermott drove through a locked electric gate to get into the parking garage. McDermott gave Daley the Converse box, and then Daley, Godoy and Lewis got out. Leaving McDermott to park the car, the three men went up to apartment 200, where Daley lived.
Inside the apartment, Daley put the Converse box down on a table. He showed Godoy and Lewis pictures of a house his mother was building in Jamaica. Meanwhile, McDermott kept calling Daley on his cell phone. Lewis wanted to count the money, but Daley told him to wait for McDermott. When McDermott finally walked into apartment 200, he did not look at either Godoy or Lewis; he just took the Converse box into the kitchen. Daley stood up, walked into another room and returned holding a gun. He pointed it at Godoy and Lewis, and told them to get on the floor. Daley then told McDermott to tape up Godoy and Lewis. Godoy and Lewis got onto their stomachs, and McDermott taped their hands behind their backs. Daley threatened to kill Godoy and Lewis, and leave their bodies in a closet to rot.
Godoy managed to free his hands, but when Daley noticed, he put the gun to Godoy’s head and said, “If you do that again, I’m going to blow your fucking brains.” McDermott re-taped Godoy’s hands and taped his feet. Daley told McDermott he was “gonna go for the bitch and the dapa,” meaning DeDunn and Lewis’s uncle. According to Godoy, DeDunn had the marijuana in her S.U.V. and was waiting at a nearby 7-Eleven. Daley walked out the front door, telling McDermott “to get the other gun” and watch Godoy and Lewis. But when Daley left the apartment, McDermott walked out right behind him. Godoy managed to stretch the tape and free his hands, and then he hopped to the front door. But as he pulled it open, McDermott suddenly appeared and a struggle ensued. During the struggle, McDermott lost an earring and a window on the screen door broke. Godoy eventually broke free. He ran through the apartment complex screaming for help.
On 135th Street, Godoy hid behind someone’s parked car. A man holding a shotgun appeared and told Godoy, “Private property. Get off,” but Godoy said, “No, I’m not getting off till you call the cops.” When the man’s daughter intervened, Godoy said he and a friend had just been kidnapped at the apartment complex and that he had escaped. Godoy begged the woman to call the police. When the police arrived, Godoy gave them a false story, saying he and his friend had been walking down the street when they were kidnapped. He didn’t tell the truth because he was afraid he would be prosecuted for drug trafficking. When the police took him back to the Casa Grande Apartments to look around, Godoy still did not tell them about Lewis being tied up in apartment 200 because he was scared.
Godoy testified he did not have a gun at any time on April 30.
Teresa Catalan testified she lived in a duplex on West 135th Street, three houses down from the Casa Grande Apartments. Catalan lived in the front house and her father lived in the back. On the afternoon of April 30, her father called to say “there was a guy hiding behind the parked car, and he wouldn’t leave the property.” Catalan went over and saw a man lying on the ground, apparently out of breath from running. He was positioned so that people going by on the sidewalk could not see him. He had silver duct tape stuck on either his hands or his feet. When Catalan asked him to get off their property, the man refused: “He said that he wanted us to call the police, and he wouldn’t go until the police came by to pick him up.” The man told her he and a friend had been tied up in an apartment around the corner, that he had gotten away but he didn’t know what had happened to his friend. When the police arrived, the man got up to meet them.
Anna Fitzgerald lived at the Casa Grande Apartments, directly across from apartment 200. On the afternoon of April 30 she heard, in rapid succession, a gunshot, the sound of breaking glass and then someone saying, “Hey, get back here.” Fitzgerald looked outside and saw that apartment 200’s screen door had hit a window, shattering the glass.
On the afternoon of April 30, Edna Martinez, whose husband managed the Casa Grande Apartments, received several telephone messages complaining about apartment 200. Martinez asked an assistant manager to check it out, and the assistant manager reported a broken window. Together, they went to apartment 200 and discovered Lewis’s body.
Lewis had been shot in the forehead. His hands were behind his back, bound with both clear packing tape and gray duct tape. The kitchen window appeared to have been shattered by the impact of the screen door opening outward. A bent earring was found on the ground a few feet from the door. A scale was sitting on the kitchen counter, along with a Converse shoe box. The box contained “flash money,” six cellophane-wrapped bundles containing one or two paper bills wrapped around strips of newspaper cut to the size of paper currency. Altogether, there was only $1,120. Daley’s fingerprint was found on one bundle of flash money, and his palm print was found on a second bundle.
Detective Steinwand testified the Converse box contained “what is commonly referred to as ‘flash money.’ [¶] . . . [¶] . . . [T]here were six bundles of what we thought was money. It was money that was rolled in half. You took your money and folded it in half, and you wrapped it with cellophane. [¶] You could still see through the cellophane. It looked like it was hundred-dollar bills. Later we determined it was not. Most of them had $100 bills, maybe two $100 bills. I believe one had a hundred and a $20 bill in it. But the rest of it was like cut newspaper, newspaper cut the same size as money, and then with the bills put over it, then wrapped in cellophane.”
That night, Lewis’s uncle convinced Godoy to go to the police. At first, Godoy repeated his story about having been kidnapped off the street but, after learning Lewis was dead, he told the police about the marijuana deal and what had taken place inside apartment 200.
A seventh bundle of flash money was recovered from underneath the front passenger seat of McDermott’s rental car, which was found parked in front of the Casa Grande Apartments.
2. Defense evidence.
Daley testified in his own defense. On April 30, he was living in apartment 200 at the Casa Grande Apartments. Daley had known McDermott for about six months and he was aware McDermott sold drugs. When McDermott came into town from Florida, Daley would let him stay at apartment 200. This time, McDermott arrived a few days before April 30. Daley was aware McDermott wanted to buy some marijuana before returning to Florida, and he also remembered that Godoy, a guy he knew who sold DVDs on the street, had said he could obtain marijuana.
Daley and McDermott drove to Slauson and Vermont, where Godoy was selling DVDs, and Daley introduced McDermott to him. It turned out McDermott knew Godoy’s cousin and had met Godoy some years’ ago. McDermott and Godoy talked about doing a marijuana deal. Godoy told McDermott he could get him a gun if he needed one, but McDermott declined.
Later that afternoon, Godoy and McDermott met outside the Casa Grande Apartments for an hour or so. McDermott came back to the apartment with a small sample of marijuana. Daley went out to play soccer. When he returned, McDermott said a friend had dropped off some money he owed McDermott, and that a drug deal was now in the works with Godoy. McDermott invited Daley to come along.
That night, Daley and McDermott drove in McDermott’s rental car to the area of 36th and Normandie, where McDermott got out and spoke to Godoy and another person, whom Daley later learned was Lewis. McDermott returned to the car and said Lewis did not want to complete the deal because it was too late. Daley testified he did not see any marijuana that night.
The next morning, Daley picked up his ex-girlfriend, Martha Rocke, and took her to work so he could borrow her car. When he returned to his apartment, McDermott said Godoy had called and that the deal was on. McDermott asked for a box to put the purchase money in, so Daley gave him a Converse tennis shoe box.
McDermott drove to the 36th Street house. At first Daley stayed in the car while McDermott spoke to Godoy and Lewis. But then they called him over and asked if they could complete the drug deal at his apartment because he had a scale there. Daley initially refused, but then agreed after McDermott offered to pay him. Daley thought Godoy and Lewis had the marijuana, but he did not see any of it.
As DeDunn and McDermott were driving back to the Casa Grande Apartments, Godoy called and said to meet them near Manual Arts High School to complete the deal. However, a police car drove by as they were meeting on the street, so they left. Godoy called again and said to meet at Daley’s apartment. When Daley and McDermott arrived at the Casa Grande Apartments, Godoy and Lewis were waiting outside. They got into the rental car and McDermott drove into the parking garage. Because Rocke’s car was in Daley’s assigned spot, McDermott told Daley to take Godoy and Lewis up to the apartment while he tried to park on the street. Daley, Godoy and Lewis went up to Daley’s apartment. The Converse box was still in McDermott’s car.
While they were in the apartment, McDermott called Daley because he could not find a parking space on the street. McDermott wanted Daley to open the security gate so he could park in the very back of the parking garage. Daley told him the landlord would not allow this and that he would have to find a spot on the street. After parking, McDermott called again because he needed Daley to unlock a security door so he could get back into the building. Although telephone records showed McDermott called Daley 10 times during this period of time, Daley testified the cell phone calls kept getting dropped.
When McDermott walked into apartment 200, he was carrying the Converse shoe box. He told Lewis to help him count the money. As soon as McDermott said that, Godoy pulled out a gun and told Daley and Lewis to get on the floor. Godoy told McDermott to tie them up. McDermott got some duct tape from underneath the kitchen sink and used it to tie up Lewis. Daley jumped up before he could be bound and ran from the apartment. Godoy yelled at him to come back, but Daley ignored him.
Daley ran to the parking garage, got into Rocke’s car and drove off. He contacted a friend, who came and got him. The friend told Daley he could go to jail because of the drug deal, so Daley decided not to contact the police. He flew to New York the next morning and never returned to apartment 200. While he was in New York, he learned Lewis had been killed. Daley never contacted police because he did not want to be implicated.
3. Codefendant’s trial.
Daley and McDermott were tried separately, and McDermott’s trial went first. Testifying in his own defense, McDermott claimed it was Daley who wanted to buy the marijuana. McDermott accompanied him to the meetings with Godoy and Lewis just to go along for the ride. When McDermott made the series of cell phone calls after dropping the others off inside the Casa Grande Apartments parking garage, it was because he suddenly felt suspicious of Godoy and Lewis. He kept calling to urge Daley to tell them to leave. But Daley insisted that McDermott come up to the apartment, so he complied. McDermott testified he walked into apartment 200 and went to the kitchen for a drink. When he returned to the living room, he saw Daley pointing a gun at Godoy and Lewis. Daley ordered McDermott to tie them up, so he did. But when Daley turned his back, McDermott ran from the apartment. Several weeks later, he was apprehended in Florida. McDermott was convicted of special circumstances first degree murder.
McDermott did not testify at Daley’s trial, so the jury did not learn of McDermott’s claim to have been an innocent bystander to a plot by Godoy and Daley to rob Lewis.
CONTENTIONS
1. Daley’s rights were violated when a potential defense witness was not granted immunity.
2. The trial court erred by restricting Daley’s questioning of a witness who invoked the Fifth Amendment privilege against self-incrimination.
3. Daley was denied effective assistance because defense counsel failed to request a jury instruction on third-party culpability.
4. There was cumulative error.
5. The trial court erred by imposing a parole revocation fine.
DISCUSSION
1. Daley’s rights were not violated when a potential defense witness was denied immunity.
The prosecution’s theory of the case was that McDermott and Daley intended to steal the marijuana after tricking Lewis into thinking he was going to be paid $35,000. The plan was to tie up Godoy and Lewis inside apartment 200, then go find DeDunn’s S.U.V. and grab the marijuana. Daley’s theory of the case was that he had been an innocent bystander to a conspiracy between Godoy and McDermott to steal Lewis’s marijuana. Daley asserts DeDunn’s testimony was crucial to his defense, and that his rights were violated when she was not immunized because she then declined to testify. This claim is meritless.
a. Background.
DeDunn told police she had not been involved in any drug deal, and that she had not been driving around with marijuana in her S.U.V. the day Lewis was killed. She knew about the plan to sell marijuana to McDermott and Daley, but the marijuana belonged to Godoy, not to Lewis, whose only connection to the drug deal was that Godoy had asked him to come along to help count the money. Because Lewis had been leery of going, Godoy said not to worry because he had a gun with him. DeDunn said she saw a gun in Godoy’s waistband shortly before he and Lewis left the 36th Street house to drive to the Casa Grande Apartments on the day Lewis was killed.
DeDunn told police she tagged along in her S.U.V. that day only because she and Lewis were supposed to attend her sister’s graduation. There was a stop on the drive over to Daley’s apartment; Lewis called to tell her where they were. When DeDunn drove up, she asked Lewis “[W]hat happened? And he was like man, they didn’t want to do it right here, you know? . . . [A]nd I was okay, let’s go, but [Godoy] told him, man, we can do this, you know? We can do this. We can make this happen.” So Lewis agreed to go with Godoy to Daley’s apartment. DeDunn was told to wait at a nearby 7-Eleven. She waited from 12:30 until about 1:40 p.m. During that time, Lewis called her twice from Daley’s apartment. The first time Lewis called he said, “[W]e almost done counting the money,” and then he called again to say, “I’m done counting the money.” DeDunn never heard from him again.
DeDunn’s testimony was vague about the exact timing of these calls. She told police: “[H]e called me around 1:00 either 1:00 or 1:30. He was like we almost finished . . . we almost done counting the money. [¶] . . . [¶] So I was like okay, so at 1:38 he say I’m finished counting – I’m done counting the money . . . .”
The following colloquy occurred during DeDunn’s police interview:
“DET. STEINWAND: Could this have been [Lewis’s] marijuana that they are ripping off?
“[DeDUNN]: No.
“DET. STEINWAND: You don’t think so?
“[DeDUNN]: I don’t think so.”
DeDunn stuck to this story, even though Detective Steinwand asked her, “[W]hat would be [Godoy’s] motive if . . . it wasn’t [Lewis’s] marijuana according to you?”
At McDermott’s trial, the prosecutor requested immunity for Godoy, which turned out to be unnecessary because Godoy testified willingly. When DeDunn’s attorney told the trial court that nothing DeDunn had to say would incriminate her, the prosecutor remarked, “Just so you know, there were four or five other witnesses who say she had a hundred pounds of marijuana in the car.” After further discussion, DeDunn’s attorney said, “Okay. You sold me. I guess she should take the Fifth. That makes sense.” Subsequently, DeDunn announced she would invoke the Fifth Amendment if called to testify. The prosecutor told the trial court he would not ask that DeDunn be granted immunity because he believed her testimony would be false.
McDermott’s attorney then asked the trial court to grant DeDunn immunity. The trial court refused, ruling that, even if it had the power to grant immunity, it would not do so. Although it agreed Daley would benefit from DeDunn’s testimony Godoy had a gun and she did not have any marijuana in her S.U.V., the trial court concluded the proffered testimony was not clearly exculpatory and that the prosecutor had not been trying to distort the judicial fact-finding process by denying DeDunn immunity.
The question of immunizing DeDunn was revisited during Daley’s trial. DeDunn’s attorney told the trial court that, if called to testify, she would again invoke the privilege against self-incrimination. Daley argued DeDunn’s testimony would exculpate him. The prosecutor argued her testimony would not be clearly exculpatory, and the trial court agreed. When the prosecutor added he also believed DeDunn’s proposed testimony would be false, the trial court said, without contradiction, that it did not “believe it’s the defense’s contention that the People are deliberately seeking to subvert . . . [or] that they’re doing this in order to gain an unfair advantage by granting immunity to one witness or another, and I don’t find any bad faith on their part.”
Daley now argues both that the prosecutor was trying to distort the fact-finding process by declining to immunize DeDunn, and that DeDunn’s testimony would have been clearly exculpatory. Neither argument has merit.
b. Legal principles.
Under section 1324, the granting of immunity is a prosecutorial function. “It was undoubtedly within the power of the Legislature to make the grant of immunity conditional upon a request of the district attorney . . ., the power to provide for the exercise of a grant of immunity being essentially a legislative function. [Citations.] Making a grant of immunity subject to a request therefor by the district attorney . . . does not invade judicial prerogatives, since the decision to seek immunity is an integral part of the charging process, and it is the prosecuting attorneys who are to decide what, if any, crime is to be charged.” (In re Weber (1974) 11 Cal.3d 703, 720.)
Section 1324 provides, in pertinent part: “In any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind 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 or produce the evidence, 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 or the evidence produced, and the court shall order the question answered or the evidence produced 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.”
In People v. Hunter (1989) 49 Cal.3d 957, 974, our Supreme Court said, “Though it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant’s rights to compulsory process and a fair trial [citation], that is not a question we need here decide. For defendant’s offer of proof at trial in support of his request fell well short of the standards set forth in the one case which has clearly recognized such a right, Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964.” Based on the reasoning of the Smith case, Hunter discussed two different justifications for granting judicial immunity to defense witnesses. The first was grounded in a defendant’s “ ‘due process right to have clearly exculpatory evidence presented to the jury, at least where there is no strong countervailing systemic interest which justifies its exclusion . . . .’ ” (Government of Virgin Islands v. Smith, supra, 615 F.2d at p. 970.) The second arose from the need to cure the misconduct of a prosecutor who “deliberately intended to keep this highly relevant, and possibly exculpatory, evidence from the jury.” (Id. at p. 969.)
“The first of the two tests outlined in Hunter . . . would recognize the authority of a trial court to confer immunity upon a witness when each of the following three elements is met: (1) ‘ “the proffered testimony [is] clearly exculpatory; [(2)] the testimony [is] essential; and [(3)] there [is] no strong governmental interest[ ] which countervail[s] against a grant of immunity.” ’ [Citation.]” (People v. Stewart (2004) 33 Cal.4th 425, 469, fn. omitted.) “The second of the two tests referred to in Hunter . . . would recognize such authority when ‘the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence,’ thereby distorting the judicial factfinding process.” (Id. at p. 470.)
c. Analysis.
Daley asserts he was entitled to have DeDunn immunized on the basis of either Hunter’s first or second test. We disagree.
(1) Prosecutor did not distort the judicial fact-finding process.
Hunter’s second test is based on the notion the prosecution can violate a defendant’s due process rights if it manipulates the immunization process in order to keep a defense witness from testifying. “We agree the prosecutor’s duty is to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game. [Citations.]” (People v. Hunter, supra, 49 Cal.3d at pp. 974-975.) However, “the prosecution’s refusal to grant use immunity to a defense witness denies the defendant a fair trial only when (1) the witness’s testimony would have been relevant, and (2) the prosecution refused to grant the witness use immunity with the deliberate intention of distorting the fact-finding process. [Citations.]” (Williams v. Woodford (9th Cir. 2004) 384 F.3d 567, 600, italics added.) “Undue prosecutorial interference in a defense witness’s decision to testify [also] arises when the prosecution intimidates or harasses the witness to discourage the witness from testifying, for example, by threatening the witness with prosecution for perjury or other offenses. . . . The prosecution’s conduct must amount to a substantial interference with the defense witness’s free and unhampered determination to testify before the conduct violates the defendant’s right to due process. [Citations.]” (Id. at pp. 601-602.)
Daley argues the kind of prosecutorial misconduct required by Hunter’s second test occurred here when the prosecutor refused to immunize DeDunn after offering to immunize Godoy, and when the prosecutor pressured DeDunn into invoking her privilege against self-incrimination by advising her attorney she could be implicated in drug trafficking.
We do not agree the prosecutor improperly pressured DeDunn into invoking her Fifth Amendment privilege. All the prosecutor did was remind her attorney to consider DeDunn’s expected testimony in the context of all the other evidence in the case. (See People v. Lucas (1995)12 Cal.4th 415, 454, italics added [witnesses may invoke privilege against self-incrimination to “refuse to answer questions calling for a potential link in a chain of evidence of guilt, as well as questions calling for clear admissions against penal interest.”].) As McDermott’s attorney acknowledged, although the prosecutor may have overstated the exact number of witnesses who could testify DeDunn was involved in the drug deal, there was certainly some evidence of her involvement.
McDermott’s attorney said: “Your Honor, as an offer of proof, I believe [DeDunn’s] underlying statement is she never had any marijuana in this case. I can’t count three witnesses. I could potentially count two in this case that would say she may have had marijuana in the car.”
“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.” (U.S. v. Vavages (9th Cir. 1998) 151 F.3d 1185, 1189.) This case does not present the kind of improper treatment of defense witnesses that courts have condemned. (See, e.g., Webb v. Texas (1972) 409 U.S. 95, 97-98 [judge “gratuitously singled out [the only defense] witness for a lengthy admonition on the dangers of perjury,” “implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole”]; United States v. Lord (9th Cir. 1983)711 F.2d 887, 889 [witness reported: “ ‘[The prosecutor] told me that my part in this case was so minor that he really didn’t want to prosecute me, but he would, depending on my testimony.’ ”]; United States v. Hammond (5th Cir. 1979) 598 F.2d 1008, 1013 [FBI agent threatened to retaliate against testifying defense witness by causing trouble for him in another pending criminal matter]; United States v. Morrison (3d Cir. 1976) 535 F.2d 223, 227 [after sending three messages via defense counsel warning witness she was liable to be prosecuted on drug charges, prosecutor subpoenaed her to “a highly intimidating personal interview”]; People v. Warren (1984) 161 Cal.App.3d 961, 973-974 [prosecutor “crossed the line separating proper advisement from intimidation” by threatening witness “that if he testified he not only could but probably would be prosecuted” and saying, “ ‘we are going to use everything against you that we have got’ ”]; People v. Robinson (1983) 144 Cal.App.3d 962, 970 [prosecutor advised witness that “charges not only can be charged against you, but they will be filed, should you take the stand”].)
Daley has not shown that the prosecutor intimidated or harassed DeDunn to discourage her from testifying, threatened her with prosecution, or otherwise substantially interfered with her decision about testifying. (See Williams v. Woodford, supra, 384 F.3d at pp. 601-602.)
Nor has there been a showing that in refusing to immunize DeDunn, the prosecutor was motivated by a desire to distort the judicial fact-finding process. As we will explain, if the record demonstrates anything, it demonstrates the prosecutor was motivated by a desire to protect the fact-finding process.
Daley argues DeDunn’s “testimony would . . . have contradicted Godoy’s story that appellant pulled out a handgun before the money was counted, since she . . . received two calls from Lewis indicating [that] he was counting, and then [that he had] finished counting the money.” But Daley is forgetting DeDunn’s testimony would have contradicted not only Godoy’s story, but Daley’s story as well.
In his opening brief on appeal, Daley describes his own trial testimony on this point as follows: “McDermott then came into the apartment with the shoe box which was inside a plastic bag. McDermott told Lewis to help him count the money. As soon as McDermott said that, Godoy pulled a gun and told appellant and Lewis to lay on the ground.” (Italics added.) We agree with this characterization of Daley’s testimony. Hence, according to Daley’s story, there could not have been any counting of the money because the moment McDermott invited Lewis to begin counting, someone pulled out a gun. This contradicts DeDunn’s police statement, but it is consistent with Godoy’s testimony, except that Godoy said it was Daley who pulled out the gun. Of course, this evidence is also consistent with the fact there really wasn’t any money to count because the Converse shoe box only contained flash money. In these circumstances, it is extremely implausible Lewis could have telephoned DeDunn and said to her, “[W]e finished counting the money.”
At trial, Daley testified: “Q [T]ell us what happened when McDermott joined the three of you in apartment 200. [¶] A When he walk inside the apartment, he came inside with a bag in his hand. . . . [H]e told Mr. Lewis, come help him count the money. As soon as he said that to Mr. Lewis, I’m sitting right there along the table, the glass table. I’m sitting right there at the glass table. [¶] Mr. Godoy pulled a gun and tell me and Mr. Lewis to lay on the ground.” (Italics added.) “Q How long is Mr. McDermott in the apartment . . . before Dwane Godoy pulls a gun? [¶] A As soon as he walk inside the apartment, he was walking through the kitchen, he told Mr. Lewis to come and help him count the money. And then Mr. Godoy pull the gun out, told me and Mr. Lewis to lay on the floor.” (Italics added.)
Daley argues: “Respondent’s argument relies on an unsupported assumption, that Lewis literally looked at and counted each individual ‘bill’ in the Converse shoe box. However, Lewis could just as easily have ‘counted’ the money by looking at the number of packaged bundles of what appeared to be bills, and multiplying that number by the amount of the real money that was shown or he could have been lying to DeDunn to delay her.”
Even more compellingly, the entire premise of DeDunn’s story lacks credibility. According to DeDunn, the marijuana did not belong to Lewis, it belonged to Godoy. But as the Attorney General points out, “if the marijuana was not Lewis’s, there was no reason for Godoy to set him up, much less for Godoy or anyone else to kill him.” On Daley’s own theory of the case the marijuana had to belong to Lewis, not Godoy, because if it had been Godoy’s then Godoy would have been stealing from himself. So not only would DeDunn’s proffered testimony have been inconsistent with Daley’s theory of the case, it would have made no logical sense. Hence, there was every reason to believe DeDunn’s proffered testimony would be false. In these circumstances, the prosecutor did not commit misconduct by refusing to immunize DeDunn. (Cf. U.S. v. Vavages, supra, 151 F.3d at p. 1190 [“We do not mean to suggest that a prosecutor should never articulate his belief that a witness is lying. Rather, we disapprove of such conduct where the prosecutor lacks any substantial basis in the record for believing the witness is lying.”].)
We conclude Daley has failed to demonstrate either that the prosecutor improperly coerced DeDunn into not testifying, or that the prosecutor’s refusal to immunize her was motivated by a desire to distort the judicial fact-finding process. Daley has failed to show his rights were violated under Hunter’s second test.
(2) Daley’s due process right to present clearly exculpatory evidence was not violated.
The chief difference between Hunter’s two tests is that, under the prosecutorial misconduct theory (i.e., Hunter’s second test), the proffered defense evidence need only be relevant, while under the right to present exculpatory evidence theory (i.e., Hunter’s first test) the defense evidence must be clearly exculpatory. “Clearly exculpatory” in this context means evidence that, if believed, would logically require the defendant’s acquittal. (Compare Government of Virgin Islands v. Smith, supra, 615 F.2d at p. 966 [judicial immunity might be justified where witness’s proposed testimony, admitting culpability and naming accomplices in victim’s assault, would have necessarily exculpated several defendants] with U.S. v. Eagle Hawk (8th Cir. 1987) 815 F.2d 1213, 1217 [even if district court could grant judicial immunity to witness who found victim’s wallet in her basement, where defendant’s accuser had been living, denial of immunity was not erroneous because evidence at most cast doubt on accuser’s credibility and did not necessarily exculpate defendant].)
DeDunn did not see who shot Lewis, and nothing she had to say would have logically required Daley’s acquittal. As the Attorney General points out, “The offer of proof by appellant, and the claim on appeal, is not that DeDunn was affirmatively able to state that Godoy had the marijuana in his car (or where the marijuana was located) nor that Godoy was the shooter or a knowing accomplice in the robbery or murder. The offer of proof as to DeDunn’s testimony was simply that she did not have the marijuana in her car and saw Godoy with a gun prior to the murder . . . .” Even had it been believable, DeDunn’s proffered testimony would have merely tended to impeach Godoy’s credibility without clearly exculpating Daley. (See Government of Virgin Islands v. Smith, supra, 615 F.2d at p. 972 [judicial immunity unwarranted if proffered testimony is “ambiguous, not clearly exculpatory, cumulative or . . . relate[s] only to the credibility of the government’s witnesses”].)
Hence, the trial court properly refused to grant immunity under the first Hunter test.
2. Trial court did not err by restricting Daley’s questioning of witness who invoked the privilege against self-incrimination.
Daley contends the trial court erred by refusing to let defense counsel ask DeDunn several questions after she invoked her Fifth Amendment privilege against self-incrimination. This claim is meritless.
a. Proceedings below.
When DeDunn’s attorney informed the trial court that, if called to testify, DeDunn would invoke her Fifth Amendment right against self-incrimination, the following colloquy occurred:
“[Defense counsel for Daley]: Let me just say my intention in calling her would be to call her as a rebuttal witness . . . [with regard to] one very narrow, specific issue.
“I’d ask her probably three questions, none of which would tend to incriminate her. The question is Do you know who Dwane Godoy is.
“Question num1ber 2, Did you see Dwane Godoy on April 30, 2004; Question number 3, Did you see Mr. Godoy with a gun on April 30, 2004.
“None of those questions would tend to incriminate [DeDunn], and any claim of 5th Amendment privilege based on those questions I think would not be legitimate.
“The Court: If I were to be looking at those questions in a vacuum, you may be correct.
“If I look at those questions being asked in the context of the other facts that may link – well, I think the issue is whether the responses to those questions would link with other evidence and incriminate her.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“[T]he first two questions would not be relevant without getting to the third, and there is no way we could talk about the third without talking about the entire context in which this took place.”
b. Legal principles.
“The privilege afforded [by the Fifth Amendment] not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . . 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.” (Hoffman v. United States (1951) 341 U.S. 479, 486-487.) Before denying a claim of Fifth Amendment privilege, the trial court 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.” [Citations.]” (Id. at p. 488.)
“[T]he privilege against self-incrimination does not require, or even permit, the court to assess the likelihood of an actual prosecution in deciding whether to permit the privilege. The court may not force a witness to make incriminating statements simply because it believes an actual prosecution is unlikely. The test is whether the statement might tend to incriminate, not whether it might tend to lead to an actual prosecution or, stated slightly differently, whether the statement could, not would, be used against the witness. [Citation.] Forcing a witness to make incriminating statements whenever the court feels that actual prosecution is unlikely would impermissibly weaken the privilege against self-incrimination. Use of incriminating statements must be forbidden, as by a grant of immunity, and not merely unlikely, before the court may force a witness to make them.” (People v. Seijas (2005) 36 Cal.4th 291, 305.)
c. Discussion.
Daley argues, “None of the three proposed questions incriminated DeDunn. The questions did not place DeDunn at the scene of any drug transaction. The questions were innocuous, as would have been DeDunn’s likely answers. Assuming that she would have testified consistently with her prior statement, she saw Godoy with a gun earlier in the day and prior to any criminal activity.” “[E]ven if DeDunn’s entire statement were admissible, there was nothing in her statement with which she could have incriminated herself. . . . [T]he context in which she saw Godoy with a gun earlier in the day was not incriminating because it was that morning and in a separate location from the scene of the charged incident. Appellant sought to call DeDunn as a witness to rebut Godoy’s false claims that he never possessed a gun on April 30, 2004.”
But if DeDunn saw Godoy with a gun on the morning of April 30, that was not “prior to any criminal activity” because it was at least the second day of a conspiracy to traffic in drugs. Exploration of DeDunn’s answers to defense counsel’s questions would have shown she knew there was a drug deal in process, that Lewis was going to accompany Godoy to help count the money, and that Godoy was taking along a gun in order to make Lewis feel safe. In addition, there was evidence from Godoy, and presumably there could have been evidence from Lewis’s uncle, that DeDunn had been transporting marijuana in her S.U.V. All of this evidence tended to incriminate DeDunn because it connected her to an unfolding drug deal.
Daley disputes this conclusion, arguing: “The court appeared to emphasize the fact that the questions themselves would lead to cross-examination that could be incriminating. However, because the determination of incrimination is question-specific, DeDunn could not have incriminated herself on cross-examination because the court would have prevented her from having to answer specific questions that it determined would incriminate her.” Not so. Daley’s argument ignores the rule that a witness who voluntarily chooses to testify is subject to cross-examination on matters relevant to the witness’s direct testimony, and as to those matters the witness waives the Fifth Amendment privilege against self-incrimination.
“It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. [Citation.] The privilege is waived for the matters to which the witness testifies, and the scope of the ‘waiver is determined by the scope of relevant cross-examination,’. . . [¶] The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. . . . [A] contrary rule ‘would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony,’ [citation]. . . . The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing cross-examination when testimony is given without invoking the privilege.” (Mitchell v. United States (1999) 526 U.S. 314, 321-322.)
A good illustration of this process can be found in U.S. v. Herrera-Medina (7th Cir. 1988) 853 F.2d 564, where defendant Mateo Cano wanted to call his brother Nicholas “to testify that Mateo’s trips to Mexico and eventual relocation to Denver were in connection with family concerns rather than, as the government’s evidence indicated, illegal transactions in drugs. On advice of counsel, Nicholas refused to testify, fearing that his testimony might incriminate him. The government refused to immunize him, so he didn’t testify, and Mateo lost the benefit of his testimony.” (Id. at p. 567.)
Addressing the issue whether there had been sufficient danger of self-incrimination to justify Nicholas’s refusal to testify, Herrera-Medina reasoned: “Mateo argues that Nicholas’s testimony about their family concerns would not have been incriminating, but that is not the point. Had he testified for the defense he would have opened himself up to broad-ranging cross-examination by the prosecution. For having decided to testify, a witness cannot assert the Fifth Amendment privilege with respect to specific questions if they are within the scope of his testimony; he cannot deprive the opposing party of the right of cross-examination. [Citations.] On cross-examination by the government Nicholas would have been asked about his participation with his brother in the Herrera drug ring and might well have been incriminated by his answers.” (Id. at pp. 567-568; see also People v. Lucas, supra, 12 Cal.4th at pp. 454-455 [“defendant proposed to ask the witnesses a series of questions regarding their activities with him on the date of the crime, including their use of controlled substances, their observations regarding his use of controlled substances, and their other activities together with defendant that day. . . . Naturally, any testimony regarding the witnesses’ observation of defendant’s condition would call for cross-examination directed at the witnesses’ opportunity and ability to observe. Such questions would subject the witnesses to the . . . danger of self-incrimination . . . .”].)
Daley argues the trial court improperly allowed DeDunn to invoke the Fifth Amendment privilege through her attorney: “DeDunn should have been asked, under oath, whether or not she intended to invoke the privilege on counsel’s three questions.” The record shows, however, that the trial court was prepared to have DeDunn take the stand to formally exercise her privilege if she chose to do so, but defense counsel expressly waived this procedure as unnecessary. In this situation, any resulting error was invited. “ ‘Under the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal. [Citations]. Similarly an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal.’ [Citations.]” (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1684, 1685-1686.)
Defense counsel told the trial court: “I don’t want to waste time and go through the charade of putting her on the stand and have her being advised of the question.”
In any event, where it appears from the circumstances a witness intends to assert the privilege as to any question asked, the trial court need not go through the motions of having each question posed to the witness. (See People v. Fonseca (1995) 36 Cal.App.4th 631, 638 [“We don’t know what more the trial court could have done. It was plain that any question about the incident would incriminate Ramirez. It was equally plain that questions about anything other than the incident were irrelevant. It was clear that Ramirez intended to invoke under any circumstance. ‘The requirement that [counsel] pose to the witness each question he intended to ask and require that the witness invoke the privilege as to each would create a meaningless ritual. Where, as here, it is apparent that the witness would have offered no testimony in response to questions posed, it is not improper for the trial court to determine that fact in advance and excuse the witness.’ [Citation.]”].)
The trial court did not err by refusing to let defense counsel question DeDunn after she invoked her Fifth Amendment right against self-incrimination.
3. Daley was not denied effective assistance of counsel.
Daley contends his conviction must be reversed because he was denied effective assistance when defense counsel failed to ask for an instruction on third party culpability. This claim is meritless; even if defense counsel should have requested the instruction, there was no resulting prejudice to Daley.
a. Background.
At the close of the prosecution case, defense counsel asked for an instruction on third party culpability that would advise the jury there was evidence showing Godoy was the person responsible for killing Lewis. The trial court tentatively denied the request because Daley had not yet testified. But after Daley testified it had been Godoy who pulled out a gun inside apartment 200 and ordered McDermott to bind Lewis, defense counsel failed to request the instruction again.
b. Legal principles.
A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ [Citation.] To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) “[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.” (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
“Adequate representation requires . . . ‘careful preparation of and request for all instructions which in [counsel’s] judgment are necessary to explain all of the legal theories upon which [the] defense rests.’ ” (In re Cordero (1988) 46 Cal.3d 161, 189.) “ ‘A criminal defendant has a right to present evidence of third party culpability if it is capable of raising a reasonable doubt about his own guilt. . . . [T]here must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” [Citation.]’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 481.)
c. Discussion.
Daley argues his own testimony, that he had been an innocent bystander to Godoy and McDermott’s plan to rob Lewis of the marijuana, entitled him to a pinpoint instruction on third party culpability. We agree. However, even if defense counsel was deficient for failing to renew his request for this instruction after Daley testified, there was no resulting prejudice.
In People v. Earp (1999) 20 Cal.4th 826, 887, the defendant claimed on appeal the trial court had erred by refusing a third party culpability pinpoint instruction. Our Supreme Court held: “Even assuming that this proposed instruction accurately pinpointed the defense theory, defendant suffered no prejudice from the trial court’s refusal to give it. The jury was instructed under CALJIC No. 2.90 that the prosecution had to prove defendant’s guilt beyond a reasonable doubt, and the jury knew from defense counsel’s argument the defense theory that Dennis Morgan, not defendant, had committed the crimes. Under these circumstances, it is not reasonably probable that had the jury been given defendant’s proposed pinpoint instruction, it would have come to any different conclusion in this case. [Citation.]”
The same reasoning applies here. Daley testified he ran from apartment 200 after Godoy pulled out a gun and told McDermott to bind Lewis with duct tape. Had the jury believed Daley, they obviously would have acquitted him with or without a third party culpability instruction. Hence, Daley was not prejudiced by defense counsel’s failure to properly request this instruction.
4. There was no cumulative error.
Daley contends the cumulative prejudicial effect of the various trial errors he has alleged on appeal requires the reversal of his convictions. We have found only one possible error, that defense counsel should have requested a third party culpability pinpoint instruction, but that error was clearly harmless. Daley’s trial was not fundamentally unfair. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056 [“Defendant contends the cumulative prejudicial effect of the various errors he has raised on appeal requires reversal of the guilt and penalty judgments. We have rejected his assignments of error, with limited exceptions in which we found the error to be nonprejudicial. Considered together, any errors were nonprejudicial. Contrary to defendant’s contention, his trial was not fundamentally unfair, even if we consider the cumulative impact of the few errors that occurred.”].)
5. Trial court imposed an unauthorized parole revocation fine.
Daley contends the trial court erred by imposing a parole revocation fine under section 1202.45 because he was given a term of life without possibility of parole and, therefore, his sentence does not include a period of parole. The Attorney General properly concedes this claim has merit.
Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.”
People v. Oganesyan (1999) 70 Cal.App.4th 1178, held that where one of the terms imposed on a defendant was for life without possibility of parole, the trial court did not err by declining to impose a parole revocation fine “because the sentence does not presently allow for parole and there is no evidence it ever will . . . .” (Id. at p. 1185; accord People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) Oganesyan reasoned the legislative purpose of restitution fines is to recoup “from prisoners and potentially from parolees who violate the conditions of their parole some of the costs of providing restitution to crime victims,” but given there is only the slimmest chance anything would be recouped from a defendant sentenced to a term that prohibited parole, “there is no evidence the Legislature intended that its cost recoupment purposes were to apply under such an extremely limited set of circumstances.” (People v. Oganesyan, supra, at pp. 1184-1185.)
We will order the parole revocation fine vacated.
DISPOSITION
The judgment is affirmed as modified. The parole revocation fine shall be vacated. In all other respects, the judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment to reflect this modification, and forward the amended abstract of judgment to the Department of Corrections.
We concur: KITCHING, J. ALDRICH, J.
Daley’s explanation is entirely speculative and not very plausible; we doubt people engaged in this kind of drug transaction would not have actually counted the money. In any event, Daley’s own testimony showed there had been no time to count because someone had pulled out a gun.