Opinion
F060732 Madera Sup. Ct. No. MCR036324
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER LUIS HERNANDEZ, Defendant and Appellant.
Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge.
Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On February 2, 2010, the Madera County District Attorney filed an information in superior court charging appellant Alexander Luis Hernandez with one count of willfully and unlawfully inflicting corporal injury upon his spouse, Griselda Galicia (Pen. Code,§ 273.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
On February 25, 2010, appellant was arraigned, pleaded not guilty to the substantive count, and requested a jury trial.
On April 14, 2010, jury trial commenced.
On April 15, 2010, the jury returned a verdict finding appellant guilty as charged.
On August 4, 2010, the court conducted a sentencing hearing, suspended imposition of sentence, and admitted appellant to formal probation for a period of five years, subject to various conditions. Among other conditions, the court ordered appellant to serve 60 days in county jail and pay an $820 fine, including a $30 court security fee (§ 1465.8, subd. (a)). The court denied appellant's motion to reduce the substantive count to a misdemeanor (§ 17, subd. (b)).
On August 5, 2010, the court filed a first amended criminal protective order -domestic violence naming Griselda Galicia as the protected person and directing appellant not to harass, strike, or threaten her for a period of three years.
On August 17, 2010, appellant filed a timely notice of appeal.
On October 28, 2010, the court granted appellant's renewed motion to reduce the charge to a misdemeanor (§ 17, subd. (b)).
STATEMENT OF FACTS
Appellant and Griselda are married and have two young children. During the early morning hours of September 13, 2009, Griselda and appellant returned to their home in Madera following a bowling night. The couple had a fight in their truck as it was parked in front of their home. Griselda believed a telephone number that appeared on appellant's cell phone belonged to another woman. Appellant was asleep in the car when Griselda made this discovery, and she hit him several times with her fist to awaken him. Appellant became upset with Griselda and wanted to leave, but she would not give him the car keys. Griselda also threatened to call the police if he left. She did dial 911 but hung up before speaking. Griselda said appellant had not hit her at this point in time.
A short time after this exchange, Griselda and appellant went inside their residence. She walked to the kitchen, picked up a knife, pointed it at appellant, and told him to leave. Griselda said she was mad at appellant and wanted to scare him. After threatening appellant, she put the knife away, but appellant was unaware that she had done so. He went to the living room of their home. Griselda entered the living room, approached appellant, pushed him, and told him to leave. Griselda and appellant began wrestling with one another, and Griselda was struck in the face several times and scratched on the neck. As their wrestling subsided, Griselda falsely told appellant the police were on their way. Appellant did not depart the premises and instead went to his bedroom.
Madera Police Officer Sean Plymale testified he was working the overlap shift on September 13, 2009, when the dispatcher sent him to a home on Bonita Avenue. The dispatcher said she had received a 911 call from the home and there was no answer when she attempted to call back. Officer Plymale arrived at 2:30 a.m. and his colleague, Officer John Palazzola, a short time later. Plymale said the residence was dark and the lights were out. Plymale looked inside the residence and saw Griselda holding a small child. Griselda appeared upset, was visibly shaking, and seemed hesitant to respond to the door. Plymale eventually contacted Griselda, but she seemed hesitant to speak with him. However, he ultimately obtained a statement from her in the front porch area of the house. Officer Palazzola stepped inside the house and spoke with appellant.
Griselda spoke hesitantly but did give Officer Plymale a statement. Plymale said Griselda described the events leading up to her 911 call. She told Plymale there was a fight over car keys and alleged cheating; that appellant threw a drink on her; that appellant had struck her in the face and forehead with a closed fist for one-to-two minutes; that appellant had choked her; and that the fight ended because of the intervention of one of their children.
Plymale placed appellant under arrest and obtained a waiver of appellant's Miranda rights. Appellant told Plymale he and Griselda got involved in an argument that centered on phone text messages and some questions of infidelity. He said he spilled, rather than threw, a drink on Griselda. Appellant denied engaging in a "knock-down drag-out fight" with Griselda and said they only wrestled over the car keys. He did not admit to using a closed fist or punching and choking Griselda. In concluding his remarks to Plymale, appellant said that Griselda scratched him.
Miranda v. Arizona (1966) 384 U.S. 436
During his statement to Plymale, appellant said that Griselda had told him she was calling the police. Appellant said something to the effect that police generally side with the female or the victim. Plymale said he took pictures of appellant and Griselda on the evening of the altercation. Appellant had a scratch or abrasion on his arm and Griselda had fresh blood in her left ear. She also had contusions on her forehead, an abrasion on the bridge of her nose, discoloration on her right upper cheek and under her lower eyelid, and redness on the lower portion of her nose. Plymale said she also had redness and discoloration on the right side of her neck. At some point in their conversation, Griselda told Plymale that appellant had choked her.
Officer Palazzola testified he and Officer Plymale responded to the home of appellant and Griselda on September 13, 2009. Plymale spoke with Griselda in the living room and Palazzola spoke with appellant in one of the bedrooms. Appellant seem agitated to Palazzola; Griselda seemed upset, scared, and timid. Palazzola remembered that Griselda had blood in her ear, swelling on her forehead, and injuries to her face. Palazzola said he transported appellant to Madera County jail on the evening of the incident. Previous Domestic Altercation
Madera County Sheriff's Sergeant Scott Jackson testified he was a deputy sheriff in 2005. On May 6, 2005, he was dispatched to a home on Hill Drive during the 3:00 a.m. hour and made contact with Griselda. She had a cut and fresh blood on her lower lip. She said the injury occurred during a fight with her husband, the appellant. She said they had been arguing for some time after she caught appellant having an affair. Griselda reported she left the house and returned during the 2:00 a.m. hour. As soon as she got home, appellant knocked on the door to her separate bedroom. When she opened the door, appellant came in and struck her with a closed fist and knocked her to the ground. Appellant kicked Griselda until one of their children awakened in the bedroom.
Griselda called 911 and appellant entered the room and asked her to whom she was talking. He told Griselda that she better tell the dispatcher that it was not him who hit her. Griselda told law enforcement officers that she and appellant had past physical confrontations where he hit her numerous times. She said this was the first time she called law enforcement. Jackson said he spoke with Griselda and she said she did not want to press charges. Jackson said she appeared to be very scared. She was crying, hurt, and afraid. Jackson advised Griselda he would continue to investigate the incident and submit it to the office of the district attorney for review. He did not testify whether the district attorney filed any additional charges in response to his further investigation.
Defense Evidence
Appellant did not present any testimonial or documentary evidence but chose to rely on the state of the prosecution evidence.
DISCUSSION
I. APPELLANT WAS NOT DENIED A FAIR TRIAL WHERE THE TRIAL
COURT COMPELLED GRISELDA TO TESTIFY DESPITE HER STATED FEAR OF SELF-INCRIMINATION
Appellant contends he was denied his right to a fair trial because the trial court compelled the principal witness, Griselda, to testify despite her actual and stated fear of self-incrimination. Appellant specifically contends the court committed error under People v. Medina (1974) 41 Cal.App.3d 438 (Medina) because the prosecution case depended substantially upon Griselda's testimony, and she was placed under "a strong compulsion to testify in a particular fashion."
A. Background
At trial, Griselda testified on direct examination during the People's case-in-chief that she was present because she had been subpoenaed, that she would not have been present otherwise, and that she did not really want to be in the courtroom. She initially said she did not want to answer the prosecutor's question about living with appellant. The court instructed her to answer the question and she said she did live with appellant. When the prosecutor asked whether Griselda and appellant had some sort of fight involving text messaging, she asked the court several times whether she had to answer the prosecutor's questions. She also asked the court, "Is there anything that I can get, like an attorney[] to counsel me? Do I have to say what happened?"
Griselda did testify that she was upset on the morning of September 13, 2009. She thought appellant had been texting another female. She wanted to know if he had been sending such text messages. She hit appellant in the arm with her fist because he had fallen asleep in their vehicle after drinking beer during their bowling match. Appellant awakened, asked what was going on, and eventually threw his drink in the backseat of their vehicle. She said he did not throw the drink at her. When the prosecutor asked what happened next, Griselda asked the court whether she had to answer the question. The court instructed her to answer the prosecutor's questions.
Griselda said she and appellant had an argument as they walked toward their house. She called 911 on her cell phone. Griselda and appellant entered the house, and their children were in bed. Griselda remembered telling an officer that she picked up a kitchen knife before officers arrived at the scene. When the prosecutor asked why she did so, Griselda said, "Do I have to answer that?" The court instructed her to answer the questions. Appellant's trial counsel said, "A this point I think advisory counsel should be appointed to advise her on how to answer the question[s], and perhaps advise her of her Fifth Amendment rights against self-incrimination."
The court instructed the prosecutor to proceed, and he repeated the question about her picking up a knife. Griselda said, "Does that mean I can't get an attorney?" The court instructed her to just answer the prosecutor's questions honestly. Griselda said she took a knife from the kitchen, pointed it at appellant (who was in the nearby living room), and told appellant she wanted him to leave. She did not remember appellant saying anything. She put the knife back. She said appellant could not drive because he had been drinking that night.
Griselda said the lights of the house were on when officers arrived. She expected the police to arrive because she had called them. The prosecutor asked whether appellant hit her before officers arrived. She responded, "Do I have to answer that?" The court said she did and Griselda asked, "What if I refuse to answer that?" The court instructed her to answer truthfully and she replied, "I don't remember if he hit me." She denied that appellant choked her before officers arrived. She did not remember telling officers that appellant hit her with a closed fist. She said a police report of the events of that evening would not help her in remembering what happened. She said she did not remember telling an officer about appellant hitting her or choking her. She said she did not remember telling an officer she did not want to testify.
The court eventually took a break during direct examination and had a discussion with counsel on the record but outside the presence of Griselda and the jury. The court noted the position of the defense that Griselda should not have been asked to testify under Code of Civil Procedure section 1219 and should have been allowed advisory counsel "given that she may have incriminated herself." The court did not believe that Griselda had the right to refuse to testify for two reasons. First, with respect to section 1219, the court noted that Griselda could not be incarcerated for contempt and there had been no reference to contempt in the proceedings. Second, the court noted an alleged victim of domestic violence does not have a marital privilege not to testify.
Code of Civil Procedure section 1219, subdivision (b) states in relevant part: "[N]o court may imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt when the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime."
In response to the court's comments, the prosecutor noted the prosecution could grant immunity to Griselda under section 1324, and "once [the] Prosecution offers that grant of immunity ... the witness cannot deny it and the Court must then order them to continue to testify." The prosecutor asked the court to grant Griselda "any criminal immunity for acts which occurred on the evening of September 13 th, 2009 around 2:30 in the morning, upon which testimony has be[en] given so far today and would expect to continue to be given. [¶] As included in Madera police report 09-28740, and my understanding of the law is that that immunity would ... not include contempt or perjury."
Section 1324 permits grants of immunity to secure testimony but withholds immunity from prosecution for perjury committed in giving that testimony. (People v. Ervin (2000) 22 Cal.4th 48, 81.)
Defense counsel expressed concern that Griselda "may have been informed that she had no choice but to testify or face contempt charges which could include incarceration. And I think that there may not be a legally recognized refusal to not answer questions, but I think she still has a choice not to answer questions and face legal consequences as a result of that." Defense counsel said he objected to the court telling Griselda she had to answer questions but "refusing advisory counsel so that she [could] consult to determine what would happen if she refused to answer the questions." In defense counsel's view, the court implied that Griselda did not have a Fifth Amendment right against self-incrimination.
When direct examination at trial resumed before the jury, Griselda admitted telling a Madera police officer she did not want to testify because "I don't want to say something, get in trouble. Incriminate myself." She said her reasons did not have to do with helping the appellant avoid trouble. After the prosecution concluded direct examination and the defense began cross-examination, the court declared the evening recess. After the jury and Griselda departed the courtroom, defense counsel noted that Griselda had not yet been informed that she had been given immunity. Defense counsel also said, "I would essentially like the jury to hear she has been granted immunity for her testimony." The court indicated it would research the matter overnight and confer with counsel the next morning.
The following morning the court indicated that section 1324 was not strictly applicable because that statute requires a written application for a grant of immunity and the prosecutor in appellant's case had only offered an oral motion. The Court explained:
"And the Court understands that motion to have been, in fact, full transactional immunity, which would mean that the District Attorney will not prosecute her on the events that occurred on the night in question; the only possible prosecution would be that of perjury."
Defense counsel said, "But even then, I think she needs to be advised that she cannot be prosecuted for the events that took place on that evening with regards to the facts of what's presented in a police report. And I'm making the request [for] two reasons: One, she has a right not to incriminate herself. And I think she attempted to do that yesterday in that she asked the Court on certain questions with regards to picking up the knife and pointing it in Mr. Hernandez'[s] direction, whether or not she had to answer that question. [¶] ... [¶] [A]nother reason I'm making a request [is] that somehow or another she be advised of the immunity, what it entails, and the statute of limitations problems .. "
After the court heard the comments of counsel, Griselda entered the courtroom in the absence of the jury. The court informed her as follows:
" . I just wanted to inform you that you are being given immunity by the District Attorney, and approved by the Court, to any events which occurred on the night of September 13th, 2009; the events that have been testified to in this trial. And also, as a practical matter, immunity from any prosecution for the events which occurred back on May 6, 2005. In any event, the statute of limitation would have run with respect to those events. [¶] What that means is you can't be prosecuted for testifying truthfully in this trial. Your only obligation is to answer the questions and to answer them
truthfully."
Griselda asked for clarification about the meaning of the term "immunity" and the court explained:
"[I]t means they can't prosecute you. In other words, if you were to say something that would be a link or otherwise would establish something that would cause them to file charges against you, they are agreeing that they will not do that."Griselda signified that she had no questions about the court's explanation. When the jury returned to the courtroom, cross-examination resumed, and defense counsel questioned Griselda in some detail about the grant of immunity from prosecution for testifying truthfully. Griselda acknowledged that the only thing she could be prosecuted for would be willfully giving false testimony. Given the grant of immunity, defense counsel asked whether there was anything she had previously testified to on cross-examination that she might now answer differently. Griselda said, "Just when we got off the truck, [appellant] wanted his keys and I wasn't giving [them] to him, and he wanted to leave and I wasn't allowing him to leave."
The court further advised her:
"You understand that when you stand up to become a witness and raise your right hand, you promise to tell the truth, you're subjecting yourself to being prosecuted for perjury. Which means if you do not testify honestly, and if that could be proved, that the District Attorney would not be
prohibited from seeking a prosecution on perjury, which is an obligation that I've explained to you already that you have, which is to tell the truth ... when you testify."
Griselda went on to testify before the jury that she was mad on the evening of September 13, 2009, and told appellant she was going to call the police. She said appellant did not touch her or assault her before she told him about calling the police. Griselda said she did not want to incriminate herself with respect to the September 13, 2009, incident because she gave false information to officers on that occasion, specifically about the alleged choking. She said she did not want to incriminate herself with respect to the May 6, 2005, incident because she did not want to admit to drinking on that occasion and because she gave false information to officers on that occasion.
Griselda described the incident with the knife on September 13, 2009. She said she became angry and wanted to scare appellant. She testified that appellant did become scared and told her to put the knife away. Griselda said she went to the kitchen, quickly put the knife away, returned to the living room, and continued to argue with appellant. At that point, appellant and Griselda engaged in a physical confrontation. She pushed and hit appellant, and he responded by wrestling with her and blocking her. After the physical altercation, she told appellant, "[T]he cops was going to get there." Appellant walked into his bedroom and stayed there until the police arrived. She said he struck her in the face but only once or twice and not with a closed fist and not for multiple minutes. She said police reports to the contrary were inaccurate. She said appellant scratched her neck but did not choke her. Griselda said there was no specific motivating factor for stopping the altercation. She said, "We just stopped."
Griselda confirmed she did not want an emergency restraining order on September 13, 2009; she did not want to testify at trial; she was present at trial only because the prosecution subpoenaed her; she only answered questions because the court directed her to; and she did not feel the need for help from victim services. Griselda said she was not interested in answering questions at trial because she did not want to incriminate herself. She understood that at this point in the trial she had a grant of immunity. She said she lied to law enforcement officers with respect to the May 6, 2005, and September 13, 2009, incidents. However, she did not lie on the stand after learning about the grant of immunity.
B. Appellant's Contention
Appellant contends the prosecution's case depended substantially on Griselda's testimony, that she was placed under a strong compulsion to testify in a particular fashion, that she was compelled to testify despite expressing her fear that her testimony would incriminate her, and that the testimony of Griselda was the only evidence that could have conceivably influenced the jury to reach a guilty verdict. He specifically observes:
"[A]ny amount of minimizing by the complaining witness of her own potential self-incriminating conduct during the fight is critical, because it is precisely her criminal conduct during the fight, and in using the knife, that makes appellant's self-defense justified. Every time the complaining witness minimized her conduct to protect herself from self-incrimination, she simultaneously and equally was undercutting appellant's legitimate claim of self-defense. In such a factual context, one cannot deny that the
complaining witness's pressure to avoid self-incrimination was prejudicial to appellant's defense."
At oral argument on appeal, appellant's counsel conceded that his client laid hands on Griselda but maintained she attacked appellant first and that appellant responded in self-defense. He went on to argue that, prior to the grant of immunity, Griselda's liberty interest was at risk if her testimony was anything other than a statement inculpating the appellant. Counsel suggested the effect of a delayed grant of immunity was to "lock" Griselda into her testimony inculpating the appellant, thus rendering the trial unfair. He concluded the trial court committed reversible error by failing to act timely, i.e., to grant immunity to Griselda prior to her testimony on direct examination.
C. General Law of Immunity
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 ...." "Although the privilege to refuse to testify applies only to the accused in criminal cases, the privilege to refuse to disclose self-incriminating information is available to witnesses in both criminal and civil proceedings." (Heafey & Blitch, Cal. Trial Objections (Cont.Ed.Bar 2011) § 46.2, p. 614-615, citing Kastigar v. United States (1972) 406 U.S. 441.) A witness may not employ the privilege to avoid giving testimony that he or she simply would prefer not to give. Where a witness receives immunity, that witness's testimony is compelled and the witness no longer has a privilege against self-incrimination. (People v. Morgain (2009) 177 Cal.App.4th 454, 466-467.)
Under California law, it is not the prerogative of the trial court to grant immunity.The determination of whether to grant immunity rests solely with the prosecutor because charging decisions fall within prosecutorial purview and discretion. (In re Weber (1974) 11 Cal.3d 703, 719-720 (Weber).) "[A]lthough the prosecution has a statutory right, incident to its charging authority, to grant immunity and thereby compel testimony [citation], California cases have uniformly rejected claims that a criminal defendant has the same power to compel testimony by forcing the prosecution to grant immunity." (In re Williams (1994) 7 Cal.4th 572, 609; People v. Samuels (2005) 36 Cal.4th 96, 127.)
Two kinds of immunity - use immunity and transactional immunity - have constitutional sanction. (People v. Campbell (1982) 137 Cal.App.3d 867, 872.) Transactional immunity protects the witness against all later prosecutions relating to matters about which the witness testifies. Use immunity protects a witness only against the actual use of the witness's compelled testimony, as well as the use of evidence derived therefrom. (People v. Kennedy (2005) 36 Cal.4th 595, 613, disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
Appellant relies upon the case law embodied in People v. Medina, supra, 41 Cal.App.3d 438, People v. Allen (1986) 42 Cal.3d 1222, and People v. Sully (1991) 53 Cal.3d 1195. The Supreme Court summarized the essence of these cases in People v. Avila (2006) 38 Cal.4th 491, 594-595:
"In Medina, the Court of Appeal held that 'a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion .' (Medina, supra, 41 Cal.App.3d at p. 455 [].) We have since observed that when an " 'accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendant's conviction [citation], the accomplice's testimony is "tainted beyond redemption" [citation] and its admission denies the defendant a fair trial.' " [Citation.] But 'an agreement requiring only that the witness testify fully and truthfully is valid.' [Citation.]
"... Sully, supra, 53 Cal.3d 1195 [], is directly on point. In Sully, the defendant argued that the trial court violated Medina in admitting the testimony of an accomplice, with whom the prosecution had entered into a plea agreement. Under the terms of that agreement, the accomplice was permitted to plead to lesser charges in exchange for her ' "truthful and complete" statements' and truthful and complete testimony in all criminal proceedings. [Citation.] The accomplice was also required to submit to and pass a polygraph examination stating that she had no involvement in
the deaths of the victims. On appeal, the defendant argued the plea condition requiring the accomplice to 'pass a polygraph examination with respect to her noninvolvement in the murders effectively compelled her to deny in her testimony that she was the perpetrator or an accomplice in any of the murders in violation of Medina.' [Citation.] We found no Medina violation because the polygraph condition did not 'dictate' the accomplice's testimony; she remained free to testify as she wished 'without having to subscribe to any particular version of events.' [Citation.] We also noted that the accomplice's testimony was amply corroborated, and that the defense 'had a full and fair opportunity, with full knowledge of the terms of the plea agreement, to impeach [the accomplice's] testimony and to argue her credibility to the jury.' [Citation.]"
D. Analysis
Relying on the authority of Medina, appellant contends the grant of immunity after the conclusion of Griselda's direct examination did not mitigate her compulsion to testify in a certain way. Rather, he contends the grant of immunity exacerbated that compulsion because "she was now precluded from making any material changes in her testimony by the explicit warning she received from the trial judge that she could be prosecuted for perjury if she did so."
As appellant acknowledges, Medina is factually distinguishable from this case. In Medina, three accomplices to multiple murders testified for the prosecution on condition that their testimony not "materially or substantially" differ from prior recorded statements. (Medina, supra, 41 Cal.App.3d at pp. 452, 455.) When an accomplice is granted immunity subject to the condition that his or her testimony substantially conform to an earlier statement to police, or that the testimony result in the defendant's conviction, the accomplice's testimony is tainted beyond redemption and its admission denies the defendant a fair trial. (People v. Allen, supra, 42 Cal.3d at pp. 1251-1252.) A prosecutor may grant immunity from prosecution to a witness on condition that he or she testify truthfully to the facts involved. Unless the bargain is expressly contingent on the witness sticking to a particular version, the principles of Medina are not violated. (People v. Boyer (2006) 38 Cal.4th 412, 455-456.) Moreover, the California Supreme Court has refused to extend Medina beyond the situation where a plea agreement expressly requires consistency between accomplice testimony and a prior statement. (People v. Reyes (2008) 165 Cal.App.4th 426, 434.)
Appellant acknowledges that in Medina the witness was tied to her initial statement to the police by the terms of her immunity agreement whereas here, the witness was tied to her initial statement to police by the threat of self-incrimination. Appellant further concedes that Griselda "was given immunity for her conduct regarding the incident." Appellant nevertheless contends error occurred because the trial court did not timely inform Griselda of the grant of immunity. He explains:
"What prevents a witness from facing the pressures of self-incrimination is not the fact of immunity itself - it is the witness's knowledge while testifying that her testimony cannot be used against her. Without that subjective knowledge, there is no check on the motivation to stick to one's previous statement to the police. It is precisely that motivation which was found to be reversible error in Medina and its progeny."
Admittedly, the prosecutor did not extend a grant of immunity at the time Griselda commenced her testimony on direct examination, despite her multiple expressions of reluctance to testify. Moreover, she was not clearly and timely informed of the grant of immunity at the time she concluded her testimony on direct examination and commenced her testimony on cross-examination. In our view, the court and prosecutor erred by notifying her of the grant of immunity so long after her testimony began and only after her repeated requests for advisory counsel went unheeded. Nevertheless, this error was harmless under all of the circumstances of the case. When the court and counsel informed Griselda of the grant, the only condition attached to Griselda's immunity was that she testify truthfully. Griselda subsequently deviated from the statements she made to law enforcement officers on May 6, 2005, and September 13, 2009, by testifying that she lied to the officers in certain respects on those occasions. The prosecutor did not tell Griselda that her immunity would be forfeited if her trial testimony differed from her prior statements to law enforcement officers. In fact, Griselda expressly acknowledged her understanding that she was being given immunity from prosecution for testifying truthfully and that the only thing she could be prosecuted for was willfully false testimony.
At one point, defense counsel asked Griselda if she would have testified differently had she known of her immunity at an earlier point in the proceedings. Griselda replied, "Just when we got off the truck, he wanted his keys and I wasn't giving it to him, and he wanted to leave and I wasn't allowing him to leave." She said she was mad and tried to prevent appellant from leaving by withholding the keys to the vehicle and by suggesting that she "was going to call the cops, and that they were going to take him."
Griselda was not compelled to testify in accordance with her previous statements to law enforcement officers. Rather, the prosecutor granted her immunity with court approval on the condition that she testify truthfully. Griselda testified she remembered the oath she took at trial to tell the truth. Although Griselda admitted that she told lies to officers on May 6, 2005, and September 13, 2009, she recognized that those statements were not made under oath and she specifically said the trial testimony she gave after the grant of immunity was truthful.
In our view, the delayed grant of immunity at trial constituted error given the procedural context of the proceedings, but the error was harmless under all of the facts and circumstances of the case.
II. THE PAYMENT OF A COURT SECURITY FEE SHALL BE IMPOSED SEPARATELY AND NOT AS A CONDITION OF PROBATION
Appellant contends, and the People concede, the trial court erroneously imposed a probation condition requiring him to pay a $30 court security fee.
The People explain:
"Section 1465.8, subdivision (a), requires the court impose a fee on every conviction '[t]o ensure and maintain adequate funding for court security.' Government Code section 70373, subdivision (a)(1) requires the court to impose an assessment on every felony conviction '[t]o ensure and maintain adequate funding for court facilities.'
"In People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402, the court determined that payment of a court security fee should not be imposed as a probation condition. (Id. at p. 1403.) Such a fee, like the cost of probation supervision, is 'collateral' to a defendant's crime and punishment. (Id. at p. 1402.) It is not meant to be a part of a defendant's rehabilitation but toward raising revenue for court operations. (Id. at p. 1403.) '[A] defendant may be imprisoned for violating a probation condition, but not for violating an order to pay costs and fees.' (Ibid.)
"Accordingly, the court security fee should not have been made a condition of probation, but should have been separately imposed."
DISPOSITION
The judgment is affirmed. This matter is remanded to the superior court with instructions to separately impose the $30 court security fee and delete any reference to such fee as a condition of probation.
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Poochigian, J.
WE CONCUR:
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Cornell, Acting P.J.
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Kane, J.