Opinion
NOT TO BE PUBLISHED
Superior Court County No. F378218, of San Luis Obispo
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Hugo Hernandez, while an inmate in state prison, was found in possession of heroin. Outside the jury's presence, he informed the court he intended to testify that he was a victim, coerced by threats of fellow prisoners, into possessing the drugs, but would refuse to reveal the names of those inmates "for fear of reprisals upon his return to prison." The trial court stated that Hernandez could not testify to the coercion unless he was willing to identify the inmates who coerced him.
Hernandez declined to testify and appeals the judgment following his conviction for possession of a controlled substance in a state prison. (Pen. Code, § 4573.6.) The jury found a true allegation that he possessed 14.25 grams or more of heroin. (§ 1203.07, subd. (a)(1); (Health & Saf. Code, § 11352.5, subds. (1) & (2).) Based on the offense and 15 prior convictions for serious or violent felonies, the trial court sentenced Hernandez to 25 years to life in state prison. (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c).) He contends that the trial court violated his constitutional rights by preventing him from testifying on his own behalf and by limiting discovery. He also contends that the trial court abused its discretion in denying his Romero motion, and that his sentence constitutes cruel and unusual punishment. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS AND PROCEDURAL HISTORY
While an inmate at the California Men's Colony, Hernandez was placed on "contraband watch." This involves placing a prisoner in isolation under the constant supervision of a correctional officer until the prisoner defecates. The officer's task is to examine the prisoner's feces to determine whether it contains contraband substances the prisoner previously had swallowed. In an examination of Hernandez's feces, a correctional officer found three packages containing multiple bindles of heroin and $750 in cash. The total amount of heroin recovered weighed approximately 30 grams. Hernandez was convicted by a jury of possession of illegal substances in a jail facility. The jury failed to reach a verdict on a second charge for possession of a controlled substance for sale and that charge was dismissed. (Health & Saf. Code, § 11351.)
Prior to trial, Hernandez informed the court that he would present a duress defense. Through counsel, he stated that he intended to testify that other inmates had forced him to possess the drugs by threats of immediate physical harm, but that he would refuse to reveal the names of the other inmates because he feared retaliation when he returned to prison. He also intended to call an expert witness to testify about prisoner retaliation against informants.
In a pretrial hearing, the trial court stated that it would strike Hernandez's direct testimony regarding duress unless, on cross-examination, Hernandez revealed the names of the inmates who threatened him. Defense counsel stated that, based on the court's ruling, Hernandez "is not prepared, based upon his fear, to testify as to those names," and that no expert would be called if his testimony on direct examination is stricken. The court stated, "[T]ypically, if someone refuses to answer a question, the court's remedy is to strike everything else that they testified to, at least everything that is somehow involved in the issue regarding a question they are refusing to answer. If I have decided I'm going to strike all the testimony, it seems the best thing to do would be to not allow the testimony in the first place, because I wouldn't then be in a position of telling the jury to disregard everything that they had heard Mr. Hernandez testify to. And that's, of course, a drastic thing to say to a defendant that you can't testify and offer the story. [¶] The few cases I've had where someone has refused to answer a question, a material relevant question, striking the testimony has been the remedy that I've used. It seems an appropriate remedy." The court also stated, "Frankly I had speculated that Mr. Hernandez would have a name for us, a nickname or the name of someone who was no longer in prison."
Hernandez did not testify at trial and no expert was called.
DISCUSSION
No Violation of Right to Testify
Hernandez contends that the trial court violated his constitutional right to testify on his own behalf by precluding him from testifying unless he revealed the names of prison inmates who forced him to possess the drugs. We disagree, and conclude that there was no abuse of discretion or denial of any constitutional right in the trial court's ruling.
A criminal defendant has a constitutional right to testify on his own behalf. (Rock v. Arkansas (1987) 483 U.S. 44, 51.) The "most important witness for the defense in many criminal cases is the defendant himself," and a defendant's right to testify is essential to due process of law in a fair adversary process. (Id. at p. 52.)
The right of cross-examination to test a defendant's veracity is a corollary of the right to testify and is essential to a fair adversary process. (Rock v. Arkansas, supra, 483 U.S. at p. 52; Brown v. U.S. (1958) 356 U.S. 148, 155; Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733.) A defendant's constitutional right to testify must be considered in light of the principle that '[w]hen a defendant voluntarily testifies in his own defense the People may 'fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.' [Citation.]" (People v. Harris (1981) 28 Cal.3d 935, 953, quoted in People v. Reynolds (1984) 152 Cal.App.3d 42, 46; see also Fost, at p. 733 [recognizing tension between defendant's right to present evidence and prosecution right of cross-examination]; People v. Seminoff (2008) 159 Cal.App.4th 518, 525-526 [same].)
Consequently, a defendant is not permitted to testify on direct examination concerning a matter while refusing cross-examination as to the same matter. (People v. Williams (1973) 30 Cal.App.3d 502, 510.) A criminal defendant "has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. [Citation.]" (Brown v. U.S., supra, 356 U.S. at p. 155; Fost v. Superior Court, supra, 80 Cal.App.4th at pp. 733-734.)
When a defendant or other witness refuses to submit to cross-examination, an accepted remedy is to exclude the witness's testimony on direct examination. "Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf." (Fost v. Superior Court, supra, 80 Cal.App.4th at p. 736; see also People v. Williams, supra, 30 Cal.App.3d at p. 510; People v. Reynolds, supra, 152 Cal.App.3d at pp. 46-47.)
A trial court also may decline to admit the testimony in the first instance when, as in this case, it determines in advance that the witness will refuse to answer questions on cross-examination. (People v. Price (1991) 1 Cal.4th 324, 421.)
Hernandez argues that a less drastic penalty should have been imposed such as striking only a portion of his direct testimony, or allowing the jury to hear the testimony but consider his refusal to name names in determining credibility. In People v. Reynolds, supra, 152 Cal.App.3d at pages 47 through 48, the court affirmed the striking of a defendant's entire testimony on direct but, in dictum, stated that such a remedy is a "drastic solution," that may be inappropriate when a witness submits to cross-examination, but refuses to answer certain questions that are of limited materiality. In such case, the proper remedy is to strike only the part of the direct testimony that pertains to the subject matter of the questions the witness refused to answer on cross-examination. (People v. Price, supra, 1 Cal.4th at p. 421; People v. Reynolds, at pp. 47-48; see also People v. Hecker (1990) 219 Cal.App.3d 1238, 1248.)
In this case, the trial court's decision to exclude all of Hernandez's direct testimony, as a comparable alternative to striking the testimony, was reasonable and appropriate. The defense of duress requires a threat which would place a reasonable person in immediate fear of imminent death if he does not commit the charged criminal act. (§ 26; People v. Subielski (1985) 169 Cal.App.3d 563, 566-567.) A generalized fear of harm is insufficient. (People v. Subielski, at p. 567.) Although Hernandez did not refuse to submit to cross-examination entirely, he announced his intent to refuse to answer questions that went to the heart of his defense. There is no indication in the record that Hernandez would testify to any issue other than his fear of retaliation for "snitching" on a fellow inmate or inmates. In addition, admitting Hernandez's direct testimony with his refusal to reveal names relegated to a credibility issue would have ignored the purpose of cross-examination, and permitted Hernandez to manipulate the jury with fundamentally incomplete testimony.
This case is very similar to People v. Reynolds, supra, 152 Cal.App.3d 42. In Reynolds, the defendant, who was charged with escape while in jail, testified that his intent was to smuggle drugs into the jail, and that he participated in the smuggling under pressure from other inmates who threatened him physical injury. (Id. at pp. 44-45.) On cross-examination, defendant answered various questions, but refused to identify the other inmates out of fear. (Id. at pp. 45-46.) The trial court struck the defendant's testimony and the Court of Appeal affirmed.
The court acknowledged that defendant's testimony that he feared retaliation was not inherently improbable, but concluded that "there is no legal exemption from cross-examination for reasons of this fear." (People v. Reynolds, supra, 152 Cal.App.3d at p. 46.) The court recognized that striking the defendant's entire testimony was a drastic solution that may be inappropriate in other cases, but was reasonable under the circumstances of that particular case. (Id. at p. 47.) The circumstances of the instant case support the same conclusion.
No Error in Limiting Discovery
Hernandez contends that the trial court's order quashing a portion of his subpoena deuces tecum for prison records was an abuse of discretion and violated his rights to due process and a fair trial. We disagree.
A defendant in a criminal case may discover documents in the possession of nonparty witnesses and government agencies that are not part of the prosecution team through a subpoena deuces tecum. (See §§ 1326-1327; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1313, 1318.) Such discovery is permissible upon a showing "the requested information will facilitate the ascertainment of the facts and a fair trial. [Citations.]" (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536.) The defendant must make a good cause showing that the documents and records will assist the defendant in the preparation of his or her defense. (Barrett, at p. 1318; Millaud v. Superior Court (1986) 182 Cal.App.3d 471, 475.) A broad and blanket demand for documents amounts to nothing more than a "fishing expedition" and is subject to being quashed. (Barrett, at p. 1320, fn. 7.)
Hernandez caused a subpoena to be served on the California Department of Corrections and Rehabilitation (CDCR) seeking production of prison records for the California Men's Colony. (§§ 1326, 1327.) The CDCR filed a motion to quash the subpoena as to document categories 4 through 7 arguing, inter alia, that the subpoena was overbroad, lacked factual support, and invaded privacy rights of third parties. In response, Hernandez argued generally that the documents might identify inmates with a connection to Hernandez who might have knowledge relevant to his defense.
On its face, the subpoena required production of voluminous prison records which would require a substantial and burdensome effort to locate, and more time to determine whether disclosure would violate legitimate privacy and privilege concerns. The challenged document categories sought records of inmates charged with, convicted of and/or administratively punished for possession or sale of heroin at the California Men's Colony (category 4), identification of inmates housed with Hernandez, their offenses, 115 charges against them, and their current location (category 5), information regarding the inmate referenced in a specified CDCR incident log (category 6), and documents regarding a confidential informant referenced in another incident log (category 7). Although initially seeking documents for a longer period, Hernandez shortened the period to 18 months in his opposition to the motion to quash.
The trial court did not abuse its discretion in ruling that document categories 4, 5 and 6 were overbroad, vague, and a "fishing expedition" for records of a large number of inmates that was pursued only because Hernandez was unwilling to identify the particular inmates who purportedly threatened him. As the trial court noted, the discovery was no more than an attempt at "showing that other people may have threatened other people and other people may have possessed heroin[]."
Hernandez argues that the trial court should have afforded him an in camera hearing to make a showing of the relevance of the discovery without revealing trial strategies or confidential defense work product. (See People v. Superior Court (Barrett), supra, 80 Cal.App.4th at pp. 1320-1321.) Although an in camera hearing may be necessary in some cases, nothing in the record shows that it was necessary or would have been helpful in this case. It was clear that Hernandez was not going to identify any inmates who purportedly threatened him in either open court or in an in camera hearing.
We also conclude that the trial court did not abuse its discretion in refusing to identify the confidential informant who was the subject of document category 7. The CDCR asserted a privilege to withhold information regarding the informant pursuant to Evidence Code section 1041, and the trial court questioned the informants in an in camera hearing. The court's order states that neither informant heard Hernandez or anyone say anything about Hernandez being forced to possess the heroin or heard or saw anyone threaten Hernandez.
Although the subpoena deuces tecum uses the singular word "informant," there were actually two of them.
Evidence Code sections 1041 and 1042 create a privilege of nondisclosure of the name of a confidential informant. (See People v. Otte (1989) 214 Cal.App.3d 1522, 1529.) When the privilege is invoked, disclosure is required only where the defendant shows that the informant was a material witness on the issue of guilt and nondisclosure would deprive the defendant of a fair trial. (Evid. Code, § 1042, subd. (d).) When an in camera hearing has been held and the trial court has reasonably concluded that the informant does not have knowledge of facts that would tend to exculpate the defendant, disclosure of the informer is prohibited. (Ibid.; People v. McCarthy (1978) 79 Cal.App.3d 547, 555.)
As requested by Hernandez, we have independently reviewed the sealed transcript of the in camera hearing. Based on that review, and on the applicable legal principles, we agree with the trial court that the informants were not material witnesses in that there is no reasonable possibility that the informants could have given evidence that might have resulted in Hernandez's exoneration of the charged crime.
No Constitutional Violation in Cumulative Trial Court Rulings
Hernandez contends that the trial court's rulings on his testimony and discovery also precluded him from calling an expert witness to testify as to reprisals by prison inmates against prison informants and that, as a result of the rulings, he was deprived of the right to present a defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690.) We have already concluded that the trial court's rulings on Hernandez's own testimony and on the motion to quash his subpoena deuces tecum did not violate his constitutional rights or constitute an abuse of discretion. The effect of such rulings on Hernandez's decision not to call his expert witness raises no constitutional or other issues.
No Abuse of Discretion in Denial of Romero Motion
Hernandez contends the trial court abused its discretion in denying a Romero motion to strike his prior convictions for purposes of sentencing. (People v. Superior Court (Romero), supra,13 Cal.4th at p. 530.) He argues the trial court should have stricken 14 of his 15 prior serious and/or violent felony convictions in order to sentence him as a second strike offender. We disagree.
A trial court has limited discretion under section 1385 to strike prior convictions in three strikes cases. The court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 motion under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
Hernandez has prior convictions for 15 serious and violent felonies, all committed in January and February 1996. The convictions consist of attempted murder, assault with a firearm, and 13 robberies. He was armed with a firearm in 11 of the robberies, and armed with a knife in one other robbery. Hernandez's current offense is nonviolent but, as the trial court stated, possession of such a large amount of heroin in prison creates an extremely dangerous situation, and indicates that Hernandez was involved with a major prison-drug operation. Also, although Hernandez performed well in school until he was 16 years old, he declined thereafter. The probation report shows misdemeanor convictions for petty theft and having a weapon on school grounds.
Hernandez argues that his prior serious and violent felony convictions all occurred during a six-week "crime spree" when he was 19 years old. In upholding the granting of a section 1385 motion in part, the Supreme Court stated that the trial court properly considered that a defendant's prior convictions "all arose from a single period of aberrant behavior for which he served a single prison term," defendant cooperated with police, his crimes were related to drug addiction, and his criminal history included no actual violence. (People v. Garcia (1999) 20 Cal.4th 490, 503.) The court, however, did not suggest that commission of a defendant's prior strike offenses in a single period of aberrant behavior was a dispositive factor. In addition, Hernandez's crime spree involved the commission of 15 felonies involving violence and use of a firearm.
Sentence is not Cruel or Unusual Punishment
Hernandez contends that his sentence of 25 years to life constitutes cruel and/or unusual punishment under the state and federal Constitutions. (Cal. Const., art. 1, § 17; U.S. Const., 8th Amend.) Again, we disagree.
A sentence is cruel or unusual under California law if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Norman (2003) 109 Cal.App.4th 221, 230, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) In making the determination, the court should consider the nature of the offense and offender, and compare the sentence with sentences imposed for more serious crimes in California, and imposed for the same crime in other jurisdictions. (Ibid.)
Hernandez's current offense would not qualify as a first or second strike but possession of such a large amount of heroin in prison is a serious crime and, of course, the offense was preceded by 15 offenses that did qualify as serious and violent felonies under the three strikes law. "Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security." (People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) In light of the nature of the offense and the offender, Hernandez's sentence does not shock the conscience or offend human dignity.
In addition, the sentence is comparable to sentences upheld by the courts in similar cases. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 30-31 [theft of $1,200 worth of golf clubs]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [theft of $150 worth of videotapes]; People v. Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [magazine theft].) Three-strike sentences have been disproportionate to the crimes in People v. Carmony (2005) 127 Cal.App.4th 1066, and Ramirez v. Castro (2004) 365 F.3d 755, but those cases are distinguishable. Hernandez's current offense is substantially more serious than the failure to update a sex offender registration in Carmony and the petty theft with priors in Ramirez. In addition, his 15 prior serious and violent felonies exceeded the criminal records of the defendants in those cases.
Hernandez's sentence also is not disproportionate to sentences imposed in California for more serious crimes, or to sentences imposed for similar crimes in other states. For purposes of determining the proportionality of defendant's sentence, we do not compare his sentence to the sentence imposed on a first-time offender. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) California statutes imposing more severe punishment on repeat offenders have long withstood constitutional challenge. (See People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.)
California's sentencing scheme is among those that impose the longest sentences, but "[i]t is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons 'advance the goals of [its] criminal justice system in [a] substantial way.' [Citation.]" (Ewing v. California, supra, 538 U.S. at p. 28.) Hernandez's sentence is consistent with the national trend of increased sentences for repeat offenders. (People v. Ingram, supra, 40 Cal.App.4th at p. 1416.)
Furthermore, Hernandez's sentence is not cruel and unusual under federal law which creates only a "narrow proportionality principle" in noncapital cases. (Ewing v. California, supra,538 U.S. at p. 20.) "The gross disproportionality principle reserves a constitutional violation for only the extraordinary case." (Lockyer v. Andrade, supra, 538 U.S. at p. 77.) Also, the steps of the analysis under federal constitutional law are virtually identical to those applied under the state Constitution, and "the federal Constitution affords no greater protection than the state Constitution." (People v. Martinez, supra, 71 Cal.App.4th at p. 1510; see Lockyer, at pp. 76-77.)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J., Michael L. Duffy, Judge