P. v. Edmond

Filed 6/7/07 P. v. Edmond CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

Appellant Damion Edmond appeals from his conviction of second degree murder. He claims that the court erred in failing to conduct an in camera investigation of a witnesss invocation of her Fifth Amendment rights and in failing to grant judicial immunity to that witness. He also argues that the court erred in failing to instruct the jury, sua sponte, with CALJIC No. 3.02. We affirm.

II.

Procedural Background

The Alameda County District Attorney charged Edmond by information with murder (Pen. Code,[1]  187, subd. (a)) and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The information also alleged that in committing the murder, Edmond discharged a firearm causing the victims death, personally used a firearm, and had a prior strike conviction. ( 12022.53, subds. (b), (c) & (d); 12022.5, subd. (a)(1); 667, subd. (e)(1); 1170.12, subd. (c)(1).)

A jury convicted Edmond of second degree murder and unlawful possession of a firearm, and found true the enhancing allegation that Edmond personally discharged a firearm causing death. Edmond admitted the prior strike conviction. The court sentenced Edmond to 60 years to life in state prison. This timely appeal followed.

III.

Factual Background

On the night of January 28, 2004, Edmond, Jamar Maddox[2] and Owen Collins were together on Fruitvale Avenue in Oakland. The three men were acquaintances and drug dealers in the neighborhood. They spent the evening drinking alcohol and smoking marijuana.

In the early morning hours of January 29, 2004, the three men stopped in front of an apartment building on Fruitvale to watch a fight between Rosa Castaneda and her boyfriend. The couple was [y]elling and throwing things in the doorway to the apartment complex. A little boy was trying to stop them from fighting. The fight lasted about half an hour, concluding when the boyfriend ran to a car and drove away. Edmond knew Castaneda and spoke with her for a few minutes after the fight. Castaneda went upstairs, and the three men talked outside for a few more minutes.

As the men were standing in front of the apartment complex, Kenneth Chambliss approached them. Chambliss asked Maddox, from whom he had bought drugs before, if he had drugs for sale. Maddox responded that he d[id]nt have anything. Chambliss asked Edmond and Collins if they had anything, and Edmond responded that he did. Maddox was concerned because he knew Edmond had no drugs to sell, and he had seen him sell fake dope in the past.

Chambliss told Edmond he had seven dollars. They went back and forth negotiating and agreed to a price of seven dollars. Edmond told Collins to walk Chambliss to the back of the apartment building. As Collins and Chambliss walked away, Edmond asked to see Maddoxs gun. Maddox handed the loaded gun to him, and Edmond put it in his waistband and walked down Fruitvale. He returned in about a minute and went to the back of the apartment complex where Collins and Chambliss were waiting. Collins walked back and stood near Maddox.

Maddox saw Edmond and Chambliss meet. He heard Edmond say something to Chambliss, which he assumed, and later told police, was Give me your money or break yourself. Edmond and Chambliss began tussling. Maddox saw Edmond reach for his waistband at the same time Chambliss grabbed Edmond by the shoulders. After about 30 seconds of tussling, Maddox heard a shot go off and saw the light flash from the gun. Chambliss took two steps in Maddoxs direction and collapsed. Maddox saw Edmond with the gun in his hand. Both Maddox and Collins took off running, with Collins leaving first. Edmond ran away in the opposite direction.

Maddox and Collins met the next day and tried to find Edmond. Maddox told Collins that Edmond killed Chambliss. Maddox did not talk to Edmond until two days after the shooting, when he asked him where his gun was. Edmond told him he had disposed of it. Maddox testified that in 2004, he got the gun used in the shooting from his brother, to whom Edmond had sold it in 2003.

Collins invoked his Fifth Amendment rights at trial and refused to testify. The court found that he was unavailable to testify, and Collinss preliminary examination testimony was read into the record. In his prior testimony, Collins testified to the same series of events as Maddox described, with the exception of denying that he led Chambliss to the back of the apartment complex.

Anthony Jones and Earl Chaney were in Chaneys van getting high on Fruitvale Avenue in the early morning hours of January 29, 2004. They told police they saw three African-American men walk by and go out of their sight. Five or 10 minutes later, they heard a gunshot, and then saw two of the three individuals running back down Fruitvale.[3] Police showed them a photo line-up, and Chaney circled a picture of Maddox, though at trial he testified that there was a misunderstanding, and he did not identify anyone.

Oakland Police Sergeant Michael Foster testified that he received a dispatch call to respond to the 2300 block of Fruitvale at about 1:40 a.m. on January 29, 2004. He and his partner arrived at the crime scene at 2:07 a.m. Other police officers and medical personnel were already there, and Chambliss had been pronounced dead. Sergeant Foster sought out Castaneda, because two 911 calls had come from her apartment that night. One had been about the altercation in which she had been involved with her boyfriend that evening, and one was about the shooting. Castaneda denied making the call about the shooting, and denied see[ing] or hear[ing] anything. She gave Sergeant Foster the names of the people she saw outside the building that evening. Edmond was one of the people she identified.

IV.

Discussion

A. Witness Castanedas Invocation of Her Fifth Amendment Rights

While incarcerated on another matter, Castaneda spoke with a defense investigator for Edmond. According to an offer of proof, she told the investigator that she had been on the telephone with Edmond at the time she heard the gunshot. She refused, however, to sign the statement transcribed by the investigator and at trial invoked her Fifth Amendment right not to testify. Edmond maintains that the trial court erred in refusing to hold an in camera proceeding to investigate the basis for Castanedas invocation of her Fifth Amendment right against self-incrimination, thereby violating Edmondss due process rights.

[A]n appellate court should review independently the trial courts ruling permitting the witness to assert the [Fifth Amendment] privilege. (People v. Seijas (2005) 36 Cal.4th 291, 304 (Seijas).) We review deferentially the trial courts resolution of any factual disputes. (Ibid.)

In Seijas, supra, the California Supreme Court recently summarized the law regarding the right against self-incrimination. It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves. . . . [T]his privilege must be accorded liberal construction in favor of the right it was intended to secure. (Hoffman v. United States (1951) 341 U.S. 479, 486.) A witness may assert the privilege who has reasonable cause to apprehend danger from a direct answer. (Ibid.; accord, Ohio v. Reiner (2001) 532 U.S. 17, 21.) However, The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself―his say-so does not of itself establish the hazard of incrimination. (Hoffman v. United States, supra, at p. 486.) The court may require the witness to answer if it clearly appears to the court that he is mistaken.  (Ibid.) 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. (Id. at pp. 486-487.) To deny an assertion of the privilege, the judge 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.  (Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.) (Seijas, supra, 36 Cal.4th at pp. 304-305.)

The Hoffman standard is codified in Evidence Code section 404. (See Seijas, supra, 36 Cal.4th at p. 305.) Whenever the proffered evidence is claimed to be privileged under [Evidence Code] [s]ection 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege. (Evid. Code,  404.)

Edmond asseverates that the court did not conduct a particularized inquiry regarding the basis for Castanedas Fifth Amendment claim. He concedes that this duty of inquiry is satisfied where it is  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.   (People v. Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).) Nevertheless, he maintains this standard has no application in this case because even the prosecutor disclaimed awareness of anything that presented her a valid right to take the Fifth. . . . [4]

Defendants claim depends upon an unduly restrictive view of the privilege against self-incrimination. Witnesses may 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. (People v. Cudjo, supra, 6 Cal.4th at p. 616 . . . .) Although the court should make a particularized inquiry as to whether or not a claim of privilege is well founded (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 428 . . .), in order to approve invocation of 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.  (People v. Cudjo, supra, 6 Cal.4th at p. 617, quoting Hoffman v. United States[, supra,] 341 U.S. [at p. ] 486 . . . .) Innocent persons, as well as the guilty, are entitled to invoke the privilege. As the high court has declared,  [t]he privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.  (Grunewald v. United States (1957) 353 U.S. 391, 421 . . . ; see also Ratner, Consequences of Exercising the Privilege Against Self-Incrimination (1957) 24 U. Chi. L.Rev. 472, 472-473.) (People v. Lucas (1995) 12 Cal.4th 415, 454.)

Edmond claims that neither the prosecution nor the trial court could posit . . . any basis for Ms. Castanedas claim of privilege, let alone a rational one. We disagree. Castaneda was engaged in a physical altercation with her boyfriend on the street in front of her home, close in time and place to the murder. Two 911 calls were made from Castanedas apartment the night of the murder, one regarding her domestic dispute with her boyfriend, and one regarding the killing. Castaneda denied making the call regarding the murder when she was questioned by Sergeant Foster that night. She was later incarcerated on another matter.[5]

Under these circumstances, we can posit that questioning Castaneda could have led to her incriminating herself regarding her involvement in a crime arising out of the street altercation with her boyfriend, or potential criminal liability based upon deliberate misstatements made to investigating police officers. Moreover, as the court in Lucas observed, [n]aturally, any testimony regarding the witnes[s] observation of defendan[t] . . . would call for cross-examination directed at the witnes[s] opportunity and ability to observe. (People v. Lucas, supra, 12 Cal.4th at p. 455.) Cross-examination regarding Castanedas ability to observe or perceive may have revealed her use or possession of an illegal substance.

In addition, there was nothing improper about the court considering the fact that Castanedas attorney, after consultation with other attorneys, advised her to assert her Fifth Amendment rights. The court also inquired whether the prosecution was willing to grant immunity to Castaneda, and it declined to do so. Edmond argues that the fact three attorneys agreed that Castaneda should assert her Fifth Amendment rights and refuse to testify is immaterial because the validity of the privilege [is] an issue for the trial court. We disagree. Such a consideration, while certainly not dispositive, is consistent with the requirement articulated in Hoffman that the trial court be  perfectly clear . . . that the answer[s] cannot possibly have [a] tendency to incriminate before it can deny a witnesss claim of privilege. (Hoffman v. United States, supra, 341 U.S. at p. 488.) In these circumstances, it was not error for the trial court to decline to find it perfectly clear that Castanedas testimony could not possibly have a tendency to incriminate her.

A particularized inquiry by the trial court does not necessarily require an in camera hearing. We find no error in the trial courts denial of the motion to hold an in camera hearing regarding Castanedas assertion of her Fifth Amendment rights.

B. Denial of Judicial Immunity to Castaneda

Edmond argues that the trial court erred in not granting judicial immunity to Castaneda, or alternatively, in not ordering the district attorney to grant immunity. He acknowledges that California courts have not looked with favor on requests for judicial immunity, or on requests to compel the prosecutor to grant immunity to a witness the defense wishes to call.

Recognizing the dearth of authority in California supporting his position, Edmond relies on Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 (Virgin Islands). In that case, the court held that judicial immunity should be granted in two circumstances. When the court finds prosecutorial misconduct by the governments deliberate intent to disrupt the factfinding process, it should order the government to grant statutory immunity to the defense witness or face a judgment of acquittal. In addition, even if there is no evidence of such prosecutorial misconduct, when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity, the court should grant judicial immunity to the witness in order to vindicate the defendants constitutional right to a fair trial. (Id. at p. 974.)

Edmond maintains that the second circumstance in Virgin Islands is applicable here, noting that our Supreme Court has stated it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendants rights to compulsory process and a fair trial . . . . (People v. Hunter (1989) 49 Cal.3d 957, 974.) Virgin Islands, however, is not binding on this court. Moreover, we previously have declined to declare a doctrine of judicial use immunity for defense witnesses in criminal cases. (People v. Cooke (1993) 16 Cal.App.4th 1361, 1371.) As we stated in Cooke, Although Justice Kaufman [in Hunter] can hypothesize cases in which judicially conferred use immunity to a third party witness might be necessary to vindicate a defendants rights, no California Court of Appeal or Supreme Court case has ever granted such immunity to a defense witness, and we will not do so now. (Id. at p. 1371, italics omitted.) We see no reason to reconsider our holding in Cooke based on the facts presented in this case. We reiterate that [t]he relief which appellant here requests should be granted, if at all, by our states highest court. (Ibid.) The trial court did not err in its denial of immunity to Castaneda.

C. Failure to Instruct the Jury Sua Sponte with CALJIC No. 3.02

With regard to the testimony of Collins and Maddox, the trial court instructed the jury generally concerning the law applying to accomplice testimony. (CALJIC Nos. 3.00, 3.01, 3.13, 3.14, 3.18, & 3.19.) Edmond asserts that the trial court erred in failing to instruct the jury, sua sponte, with CALJIC No. 3.02, which provides in pertinent part: One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted. He also argues that the trial court should have modified this instruction to identify the potential target crimes allegedly committed by him as the principal, and which he contends Collins aided and abetted. Edmond argues that the need to give this additional instruction was important because, unlike Maddox, Collins was identified by the judge only as a potential accomplice. Thus, the jury had to make a factual finding as to whether Collins was an accomplice, and if so, his admitted preliminary hearing testimony required corroboration before it could be found credible by the jury.

In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman), the court summarized the natural and probable consequences doctrine by which an aider and abettor of one criminal act can be found guilty of another. Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a natural and probable consequence of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the natural and probable consequences doctrine, the jury must find that, with knowledge of the perpetrators unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendants confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a natural and probable consequence of the target crime that the defendant assisted or encouraged. (Id. at p. 254.)

In Prettyman, both the defendants were charged with murder. The prosecution contended that one defendant had beaten the victim to death with a steel pipe, while the other defendant encouraged him. The issue before the court was whether, when the prosecutor relies on the natural and probable consequences doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. (Prettyman, supra, 14 Cal.4th at p. 254.) The court held that in these circumstances, the trial court must, on its own initiative, identify and describe for the jury any target offense allegedly aided and abetted by the defendant. (Id. at p. 268, italics omitted.) That sua sponteduty, however, is quite limited. It arises only when the prosecution has elected to rely on the natural and probable consequences theory of accomplice liability and the trial court has determined that the evidence will support instructions on that theory. The trial court, moreover, need not identify all potential target offenses supported by the evidence, but only those that the prosecution wishes the jury to consider. (Id. at p. 269.)

People v. Gonzalez (2002) 99 Cal.App.4th 475 (Gonzalez), addressed the precise issue presented here. Defendant Gonzalez asserted on appeal that the trial court failed to instruct the jury, on its own initiative, with an instruction along the lines of CALJIC No. 3.02. (Id. at p. 483.) Relying on Prettyman, supra, the court held that [q]uite obviously, there is no sua sponte duty to give instructions on target offenses unless the prosecutor relies on a natural and probable consequences theory. . . . [] . . . [W]e fail to distinguish any meaningful difference between this case and [the] holding in Prettyman . . . . If there is no sua sponte duty to instruct on target offenses as it relates to an element of a charged crime, then no justification in reason or law warrants imposing such a responsibility on a trial court to act on its own initiative in connection with accomplice testimony. (Gonzalez, supra, 99 Cal.App.4th at p. 485.)[6]

The prosecutor here did not rely on the natural and probable consequences doctrine in the trial court.[7] Accordingly, under Prettyman and Gonzalez, the trial court had no sua sponte duty to instruct the jury with CALJIC No. 3.02, nor identify potential target crimes.

V.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

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Sepulveda, J.

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Rivera, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Maddox was initially charged, as a codefendant, with murder as an accomplice, aider or abettor. As part of a negotiated plea, Maddox agreed to testify at Edmonds trial, and was allowed to plead guilty to being an accessory to a robbery. Maddox also admitted the allegation that he was armed with a firearm.

[3] At trial, both Jones and Chaney testified that they did not want to be in court. Jones testified he could not tell at the time whether the individuals were male or female, or their race. At trial, Chaney recalled seeing only two men.

[4]The prosecution, nevertheless, declined to grant Castaneda use immunity in this regard.

[5]Castaneda was in custody regarding drug charges at the time of trial.

[6] Edmond acknowledges the Gonzalez holding directly supports respondents argument, but asserts only that Gonzalez cannot be . . . correct because it would leave[] California law in a lamentable state.

[7] We also note that Edmond, though requesting other accomplice jury instructions, failed to request CALJIC No. 3.02.