Opinion
D055352 No. SCD216879
08-19-2010
THE PEOPLE, Plaintiff and Respondent, v. ELMER D. JAMES, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael D Wellington, Judge. Affirmed.
A jury convicted Elmer James of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)) but found him not guilty of other charges of first degree burglary and assault with a deadly weapon. In a bifurcated proceeding, James admitted he had suffered a prior prison conviction. On appeal, James contends he was deprived of his federal constitutional rights to compulsory process and due process of law by the trial courts refusal to grant immunity to a proposed defense witness. He also contends, and the
People concede, the abstract of judgment should be corrected to accurately reflect his actual custody credit. We direct the superior court to correct the abstract of judgment as requested, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecutions Evidence
In July 2008, William Hlobik was living at a Travelodge Motel on El Cajon Boulevard. Because Hlobik was unemployed, his mother routinely paid his motel bills every week. She would wire him additional money for income.
At about 1:00 p.m. on October 18, 2008, Hlobik was watching television in his room when he heard knocks at his door. He spoke and looked through the peephole, but no one answered or was there. After the second knock, he cracked open the door, which was then forced open by a man who Hlobik had never seen or met before, but who he later identified as James. James rushed at Hlobik, who fell back onto his bed. James then hit Hlobik on the back of the head with what turned out to be a rubber mallet. Hlobik briefly blacked out but then continued to fight and struggle with James, swinging a beer bottle at him. Hlobik later testified that James told him "whatever is mine [Hlobiks] is his." He did not know what James wanted.
When someone else knocked on Hlobiks door, James went to the door and opened it. Hlobik fled out the door and saw Diemekia Reed, who he knew by the name Kiwi, standing on the porch area. According to Hlobik, he had no idea why Reed was knocking at his door and was surprised to see her there; she had never been to his room before.
Hlobik had occasionally seen Reed around a neighborhood convenience store and had spoken with her and given her change when she asked for it, but they otherwise had no relationship. Hlobik ran by her to the managers office. As James walked away from the hotel, he shouted out that Hlobik had attacked him.
Joyce Adams, who lived and worked at the Travelodge, was in the office that day and opened the door for Hlobik. He was frantic and told her he was attacked in his room. Adams saw Hlobik was extremely frightened and was bleeding from the head all over his hands. She called 911 and handed him the phone. Adams saw a white woman out in the front of the motel, and heard her yell at James something in the manner of, "Hurry up." James was holding something that was wrapped in a T-shirt. Both James and the woman left westbound on El Cajon boulevard. According to Hlobik, Reed was standing on the steps at the motel while he called the police, helping him get Jamess identification correct as to what he was wearing and what to tell police.
Responding officers found James nearby in the backyard area of an apartment complex. He was sweating, had blood on his hands, shirt and forehead and an abrasion on his forehead. James had Hlobiks phone and wallet.
Defense Evidence
Peter Barranco, a private investigator, conducted a face-to-face interview with Hlobik in March 2009, about a month and a half before Hlobik testified at trial. Hlobik told him that Reed had once approached him while he was with a group of people and asked if she could use the bathroom. Hlobik offered to let her use the bathroom in his room because it was the closest one.
James testified in his own defense. According to him, Reed introduced him to Hlobik on the morning of the incident. She had approached James while he was at a nearby liquor store and invited him to have a drink at Hlobiks room. They walked to the Travelodge, but Hlobik was preoccupied and did not want to talk so they returned to the liquor store. Reed then asked James to loan her $40 so Hlobik could pay his rent. James gave her the money. Reed left with another woman, but returned alone 30 to 45 minutes later. James purchased wine and cigarettes, and he and Reed returned to Hlobiks room. Hlobik let them in, and after Reed pulled some drugs from her purse, she and Hlobik smoked them while James drank his wine. About 40 minutes later, James was getting ready to leave and asked Reed when she would repay his money. She responded that he should ask Hlobik, but Hlobik told him to ask Reed. James asked Hlobik when he was going to receive money from his mother, and Hlobik told him it would be "anytime now." James then indicated he had to leave, and told Hlobik he would take something as collateral. He took Hlobiks wallet and cell phone as collateral for his money. According to James, Hlobik just shrugged his shoulders in response. However, as James was leaving Hlobik hit him in the right side of the head with a mallet. James denied bringing the mallet with him to Hlobiks room.
James testified that he turned around, grabbed Hlobiks raised hand, and struggled with him for the mallet. When he saw Hlobik reaching for a beer bottle, he struck
Hlobik. He did not deny hitting Hlobik. James then asked Hlobik why he hit him, and Hlobik responded that he was "trippin or something." The men talked, and James told him he was going to give everything back as long as he gave him his money back. Reed then knocked on the door, and when James reached out to open the door, Hlobik ran out of the room and screamed that James had hit him and robbed him. James testified that he sat and thought about what he was going to do because he was on parole and in trouble, but then left, and was later apprehended.
On cross-examination, James admitted that to avoid getting in trouble he did not tell the investigating detective that there were drugs involved; he told the detective that he was not buying drugs from Hlobik. James admitted that Reed had solicited him for prostitution but he had declined. He nevertheless spent a few hours with her that day and loaned her his money because he wanted to party and drink at her friends room.
Rebuttal Evidence
San Diego Police Officer Jonathan Cooksey briefly interviewed James and took his statement minutes after his arrest. According to the officer, James told him that he went to Hlobiks apartment that day to collect money he had lent to him a few days earlier. James told him Hlobik did not have the money, so he took his cell phone and wallet to hold until he could come up with the money. James reported that Hlobik struck him with a bottle.
DISCUSSION
I. Use Immunity
James contends the trial court violated his federal constitutional rights to compulsory process and due process of law by failing to grant or even consider granting Reed use immunity after the prosecutor declined to grant her such immunity. The People respond that Jamess counsel failed to request judicially-conferred immunity to Reed at the time of trial, and thus James has forfeited the claim of error on appeal. They further assert that the trial court did not have authority to sua sponte grant Reed immunity, but even if it did have such authority, its decision not to grant immunity was proper. Finally, they respond that any error by the trial court is harmless.
Use immunity is " [i]mmunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom.... " (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.) "Use immunity does not afford protection against prosecution, but merely prevents a prosecutor from using the immunized testimony against the witness. Use immunity provides sufficient protection to overcome a Fifth Amendment claim of privilege." (Ibid.)
A. Background
Before trial, Jamess counsel unsuccessfully renewed a request for a continuance on grounds Reed was an important percipient witness for the defense. He had explained that Reed would testify she had been in the victims room, contrary to the victims testimony and thus her testimony was relevant to Hlobiks bias and veracity. The next day, the trial court announced outside the presence of the jury panel that Reed was in custody and would be arraigned the following day, and it ordered she be produced the next day with a representative from the office of assigned counsel.
On May 1, 2009, attorney Gary Roberts appeared and accepted appointment for Reed. He advised the court that Reed would be invoking her Fifth Amendment privilege against self-incrimination and would not testify. Reed took the stand, and, when asked if she personally knew Hlobik, invoked the Fifth Amendment. The trial court asked Reed if she understood she would be asked questions about an incident that took place on October 18 at the Travelodge, and whether it was her intention not to answer them on the basis of the Fifth Amendment. Reed responded, "Yes, sir."
When asked if there were objections to her invocation, defense counsel objected that he did not "see where shes subject to any liability" and noted that the DA could give her immunity, but its failure to do so prevented James from having an opportunity to examine her. Counsel characterized the DAs failure in that regard as an abuse of discretion in view of the fact they had not charged her for anything involved in the case. The trial court ruled there was no abuse of discretion by the prosecution in declining to give immunity, reasoning: "Thats entirely an executive branch function. They have the authority to do it. Theyre charged with exercising that responsibility."
The court then asked Reeds counsel to explain the basis for Reeds Fifth Amendment claim. Attorney Roberts explained that the public information showed Reed had a pending prostitution charge on which she had not been arraigned; that prostitution was a crime of moral turpitude and Reed could be compelled to answer questions on that in connection with her arraignment; and that she had made a statement to the district attorney investigator that she smoked rock cocaine, which had potential implications on cross-examination and could be used against her if she were arrested. The court responded: "[L]et me just add on the facts of this case as we have it so far. There is testimony that puts her in the sitting in the front door at the time of the break-in of the victims house or room, evidence that puts her on the scene at the Travelodge under circumstances where the manager has said that folks who dont reside there are banned from the location, making her presence arguably a trespass. [¶] There are a number of areas where she might incriminate herself should she testify about these events. I think its a valid Fifth Amendment claim, and Ill sustain it."
B. Forfeiture
We agree with the People that as a threshold matter, by failing to request it below, James has forfeited any claim that the trial court should have exercised its discretion to grant Reed immunity. (See People v. Lucas (1995) 12 Cal.4th 415, 459-460.)
In connection with a similar claim of error, the California Supreme Court recently stated: "[O]bjections to the introduction of evidence and claims respecting the extension of prosecutorial or judicial immunity must be made in the first instance in the trial court. These objections and claims must be initiated in the trial court so that the court can take steps to prevent error from infecting the remainder of the trial, so that an adequate record may be developed, and so that the court, acting as a finder of fact that has observed the participants, may reach conclusions on matters such as credibility and intent....In requiring an objection at trial, the forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error. " (People v. Williams (2008) 43 Cal.4th 584, 624.) In Williams, the high court was faced with the defendants argument that he had not forfeited his claim because it presented a pure question of law. (Ibid.) The court rejected that argument, explaining that despite such an argument it nevertheless had "concluded specifically that a defendant forfeits a claim that the court or prosecutor should have granted immunity to a witness when the defendant has failed to raise that claim in the trial court." (Id. at pp. 624-625; see also People v. Lucas, supra, 12 Cal.4th at pp. 460-462; People v. Cudjo (1993) 6 Cal.4th 585, 619 (Cudjo).)
James maintains that because the trial court did not consider whether it could grant Reed immunity, it did not engage in any analysis as to whether her testimony was exculpatory, essential, and it did not decide whether there was a strong governmental interest that countervailed against a grant of immunity. But these are the sorts of factual matters the trial court could have assessed had James raised the issue during the discussion concerning Reeds exercise of her Fifth Amendment rights. He also argues, in reply, that we should relax the forfeiture rule if the result would be an injustice to the defendant. Our states high court did not recognize any such relaxed forfeiture standard in People v. Lucas, supra, 12 Cal.4th at pages 459-460, when it concluded the defendant there similarly waived his claim by failing to request judicial immunity. We conclude James has not preserved the issue of his entitlement to judicial immunity for appeal.
C. The Trial Court Lacks Inherent Authority to Grant Judicial Immunity
Even were we to consider the merits of Jamess claim, we would reject it on grounds the trial court does not have inherent power to confer immunity on a witness called by the defense. (People v. Lucas, supra, 12 Cal.4th at p. 460.) In Lucas, the high court characterized as "doubtful" the proposition that the trial court has inherent authority to grant immunity. (Ibid.; see also People v. Stewart (2004) 33 Cal.4th 425, 468 (Stewart)?) It explained that " the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has "inherent power" to confer immunity on a witness called by the defense. [Citation.] The one jurisdiction that recognizes such a power... also recognizes that "the opportunities for judicial use of this immunity power must be clearly limited;... the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity.... [¶] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendants case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the governments witnesses.(People v. Lucas, supra, 12 Cal.4th at p. 460, quoting People v. Hunter
(1989) 49 Cal.3d 957, 974.) Assuming a trial court possesses authority to order immunity, it may do so only if each of these three elements is met. (Stewart, at p. 469.)
The California Supreme Court recognizes a second circumstance in which judicially conferred immunity to a defense witness might be constitutionally necessary: when the prosecutor intentionally refuses to grant immunity to a key defense witness for the purposes of suppressing essential, noncumulative exculpatory evidence, and thus distorts the judicial factfinding process. (People v. Stewart, supra, 33 Cal.4th at p. 470.) James does not raise this circumstance or such prosecutorial misconduct as a justification for immunity in this appeal. Nor does he argue that Reeds invocation of her right not to incriminate herself under the Fifth Amendment was somehow invalid or the result of trial court error. (See People v. Cudjo, supra, 6 Cal.4th at p. 617 [trial court may compel witness asserting a Fifth Amendment privilege to answer questions only if it " clearly appears to the court that the proposed testimony cannot possibly have a tendency to incriminate the person claiming the privilege "].)
James concedes that no California court has yet found error in a trial courts refusal to grant use immunity where the prosecutor does not, as in this case. We decline to in the absence of controlling precedent for such a holding. (Accord, People v. Cooke, supra, 16 Cal.App.4th at pp. 1367, 1371 [characterizing Hunters language on judicial immunity as dicta and declining appellants invitation to declare a doctrine of judicial use immunity for defense witnesses in criminal cases].) However, he maintains that in Stewart, supra, 33 Cal.4th 425, Cudjo, supra, 6 Cal.4th 565, and In re Williams (1994) 7 Cal.4th 572, the high court has "reaffirmed" the viability of the Hunter analysis described above, which would have compelled the trial court to conclude Reeds testimony was crucial to his defense case, not cumulative, and "clearly exculpatory...." Because the trial court did not consider the question in the first place, he asks us to remand the case for a hearing to determine whether a strong governmental interest justified the courts failure to consider granting such immunity to Reed, with an instruction that he receive a new trial with Reeds immunized testimony if the prosecutor is unable to demonstrate such an interest.
We cannot characterize the California Supreme Courts discussion in Stewart, Cudjo, or In re Williams as adopting or in any way affirming the Hunter analysis for purposes of assessing the entitlement to judicial use immunity. Our high court reemphasized the doubtful nature of the right in People v. Williams, supra, 43 Cal.4th 584 and Lucas, supra, 12 Cal.4th at page 460, both decided after Cudjo and In re Williams, as well as in Stewart, supra, 33 Cal.4th at page 468. The court merely engaged in the analysis based on its assumption of such a right for the sake of argument. (E.g., Stewart, at pp. 468-469; see People v. Williams, at p. 622.) Doing so here, we conclude that even assuming the trial court could have granted immunity to Reed, we are not convinced that her proffered testimony in this case is so "clearly exculpatory" that it would meet the Hunter test articulated above. James argues only that "it is possible that [Reed] knew something about appellants taking the phone and wallet for collateral" and "[w]ithout her testimony, that was not known." And, as the People point out, Reed did not mention Jamess asserted $40 loan in an interview by a defense investigator, and she was not present in the room when James took Hlobiks wallet and phone. As a consequence, her potential testimony would be ambiguous at best, failing to meet the " convincing showing " sufficient to satisfy the court that immunity should be conferred. (People v. Stewart, supra, 33 Cal.4th at p. 469, fn. 23.)
II. Correction of Abstract of Judgment
James contends, and the People concede, that we should order the abstract of judgment corrected to reflect that James has 242 days of actual custody credit. We agree the abstract ofjudgment contains a clerical error reflecting only 24 days of actual credit, when it should reflect 242 days. We direct the trial court to amend the abstract of judgment to make that correction. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Thereafter the court shall forward the amended abstract ofjudgment to the Department of Corrections and Rehabilitation.
DISPOSITION
The superior court is directed to correct the abstract of judgment to reflect 242 days of actual custody credit and to forward a corrected copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
OROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.