PEOPLE v. HOLLINQUEST









Filed 12/20/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. KOREY HOLLINQUEST, Defendant and Appellant.

A124613 (Contra Costa County Super. Ct. No. 05-051554-4)

Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187) with a special circumstance (Pen. Code, § 190.2, subd. (a)(17)), and robbery (Pen. Code, § 211). He was sentenced to a term of life in state prison without the possibility of parole.
In this appeal he claims that the admission of the preliminary hearing testimony of a prosecution witness following the prosecutor’s refusal to grant the witness immunity at trial constituted prosecutorial misconduct and resulted in a denial of his rights to confrontation and due process. He argues that the prosecutor committed additional acts of misconduct by relying on inadmissible evidence of his silence to prove guilt in violation of his privilege against self-incrimination. He also objects to the trial court’s instruction on unjoined perpetrators.
We conclude that the prosecutor did not deny defendant the right of confrontation by refusing to grant immunity to a witness who testified at the preliminary hearing but was subsequently charged with murder. We conclude that the prosecutor’s reference in closing argument to defendant’s postarrest silence in discussions with a friend was misconduct, but was not prejudicial to the defense. We find that no other prosecutorial misconduct was committed, and defendant’s trial counsel did not afford him inadequate representation. No instructional error occurred. We therefore affirm the judgment.
STATEMENT OF FACTS
The victim, Jacque Smith, was killed around 1:00 p.m. on August 22, 2005, at 12th Street and Maine Avenue in the Coronado Santa Fe area of Richmond. He suffered eight gunshot wounds, along with multiple fractures and abrasions “all over his body.” His injuries were consistent with “being run over” and “dragged along” the pavement by a car, shot, and “pistol-whipped.”
The primary testimony that implicated defendant in the murder of Smith came from Torry Buchanan, who, according to at least one account, had been involved for months in an intimate relationship with the victim. Shira Dennis, a close friend of the victim, testified that Smith was openly bisexual, but Buchanan was not, and “didn’t want anybody to know” of his sexual relationship with the victim. According to Dennis, Smith and Buchanan lived together briefly in an apartment in Benicia, and acted as “boyfriend and boyfriend.”
Not long before the murder, however, Smith became “upset” with Buchanan and did not trust him after his money and some items, including a television, were appropriated and “taken out of the house.” Dennis testified that Smith was “tired of Buchanan stealing from him,” and was in the process of breaking off their relationship. Smith recently moved to Stockton, and Dennis believed that he did not want Buchanan to know the location of his new residence. Smith was also fearful of Buchanan. Before the murder Smith received a message from someone that warned him Buchanan intended to rob and kill him.
At defendant’s preliminary hearing, Buchanan testified after receiving use immunity from the prosecution. This testimony was later presented at defendant’s trial. In Buchanan’s preliminary hearing testimony, he denied that he had sexual relations with Smith. In fact, Buchanan acknowledged that he warned the victim he would “beat his ass” if Smith “kept telling people” they had a “homosexual relationship.” Buchanan testified that he maintained a friendship with Smith to “play him” and “get as much” as he could from the victim. According to Buchanan, Smith bought him clothes and gave him money, and on one occasion provided him with bail in the amount of $45,000 to obtain his release from jail. Smith subsequently threatened to rescind the bond he had posted, which caused Buchanan concern that his bail would be revoked. Buchanan further acknowledged that shortly before Smith’s death, the decedent accused Buchanan of “stealing money from him.” Buchanan denied that he stole money from Smith, but Smith no longer trusted him.
Buchanan testified that two days before the murder occurred, defendant, whom he had known for a couple of years, approached him with a plan to rob Smith. Defendant said he “needed some money” and “wanted to rob” Smith, who he knew would be in Buchanan’s company. Buchanan said “all right,” and they exchanged cell phone numbers to remain in contact to set up the robbery.
About 9:00 on the morning of the murder, Smith drove his navy blue Cadillac to pick up Buchanan in Rodeo. After they stopped for food in Hercules, Buchanan began to drive. He drove the car to Oakland where they “purchased some weed.” Buchanan used Smith’s cell phone to call defendant to report to him that they were on the way to 12th Street in Richmond. During one call defendant told Buchanan that he had a gun.[1] Buchanan ultimately drove the victim’s Cadillac to Richmond, where he parked as arranged with defendant at 12th and Florida.
Defendant approached the car with a gun in his hand and ordered Buchanan to drive around the corner to 13th and Maine. Buchanan did so, and parked the car in a lot near the residence of his friend Brenda. Defendant then struck Smith several times with his fist. Buchanan told Smith to call his mother to arrange for her to give him some money so defendant “wouldn’t harm” him. Buchanan heard Smith on the phone with his mother exclaim, “ ‘Torry trying to rob me.’ ” Buchanan yelled to defendant not to kill Smith. After defendant struck Smith, the victim jumped from the car with the cell phone in his hand and “started running” away. Defendant chased after Smith as Buchanan left the car and went to Brenda’s house.
From inside Brenda’s house Buchanan heard the sound of five or six gunshots coming from Marina Way. He asked Brenda to “see what happened.” She went outside for about five minutes, then returned to the house and said that “somebody got killed outside.” Buchanan went back outside and observed defendant as he was walking “back towards the car.” He threw defendant the keys to the Cadillac, then returned to Brenda’s house to ask her to call him a cab.
Buchanan insisted that he did not want Smith killed, although he admitted that he willingly participated in the robbery. He also testified that defendant did not mention to him that he planned to kill Smith. Buchanan did not realize that defendant intended to kill Smith until the victim ran from the car and defendant chased after him.
When questioned after the murder, Buchanan lied to the police and claimed that he also had been a victim of the robbery of Smith. Buchanan identified defendant from a photo lineup as the man who robbed and killed Smith. He referred to defendant by the “moniker of Twin or Twig.”
After Buchanan spoke with the police, he talked to defendant on the telephone. Defendant asked “why the police came to his house.” Buchanan replied that he had been questioned by the police. Defendant said that he “was going to surrender himself to the police.”
Buchanan acknowledged that he lied in his interviews with the police to protect himself, but claimed that his preliminary hearing testimony was truthful. Before the preliminary hearing, Buchanan was subpoenaed to testify by an investigator for District Attorney’s Office. Buchanan expressed to the investigator that he “was afraid,” and at his request was placed in a hotel room for his safety. He briefly absconded to Nevada, but voluntarily agreed to return to testify.
Buchanan was not charged with any crimes related to the murder of Smith before the preliminary hearing, and insisted that he has never been “promised anything” in exchange for his testimony. After the preliminary hearing but before defendant’s trial, Buchanan was charged with felony murder.
Smith’s mother, Joanne Fountaine, corroborated some of Buchanan’s testimony. She was aware that her son was acquainted with Buchanan. Fountaine had heard Buchanan’s voice over the telephone, and seen his photograph when a bail bondsman visited her house “looking for him.” The day before the murder, she also heard Smith tell Buchanan, “ ‘You better give me my money. I want my money.’ ”
On the day of the murder, Fountaine loaned Smith her cell phone. Around 1:00 p.m., Smith called her on the cell phone, crying, and “said, ‘Momma, they killing me and beating me.’ ” She heard an unidentified voice, not Buchanan’s, order Smith to have his mother bring money. The same voice, which Fountaine identified only as “Black” and “young,” said, “ ‘I’m gonna kill your ass,’ ” and “ ‘I’m gonna kill this motherfucker.’ ” She also recognized Buchanan’s voice exclaim, “ ‘Korey, don’t kill him’ ” a couple of times, before the other man yelled, “ ‘This guy’s gonna run.’ ” Fountaine was “positive” that Buchanan used the name “Korey” to refer to the man beating the victim, although in an interview with an investigator she stated that she heard Smith mention the name “Torry” on the phone. Fountaine then heard “a lot of rattling” sounds, like Smith “was trying to run away,” before the phone was thrown or dropped.
Fountaine immediately called the police, then “went looking” for Smith’s blue Cadillac. She found her son’s car near a school at the corner of 9th Street and Maine. The car had “blood all over the driver’s side” and on the wheels.
Smith’s body was located on the curb at the corner of 13th Street and Maine. “Lots of blood” was found nearby, and “a tire track” was detected across the body, as though Smith had been run over by a vehicle. The “blood-stained tread marks” on the asphalt where Smith’s body was found were consistent with the pattern of the Cadillac tires. Expended .44-caliber shell casings were discovered close to the victim and in his clothing. Numerous fingerprints were taken from the Cadillac, but none belonging to defendant were identified.
Witnesses who were present near the scene of the murder heard or observed some of the incident, but none of them identified any of the principals. Juan Trujillo, Wanda Parker, and Crystal DeVaughn were in a house on 13th Street and Maine the day of the murder.[2] They heard screaming outside that sounded like a frightened woman pleading “stop” or “let me go,” and a “male voice” that sounded angry. A few seconds later a Black person with “dreads” was chased by another, heavier Black person, then numerous gunshots fired in quick succession were heard. The “person who had the dreads” was then seen lying in the street, twitching, before a blue Cadillac ran over his body and “kept going.” Trujillo also told the police that he observed a “Black male,” around “5 foot 9,” walk along Maine Street and toss car keys to another person.
Raymonde Magnier, who lived on the corner of 13th Street and Maine, heard shots outside her house. She looked through a window and observed “something down on the ground,” which was “covered up,” and a man walking past her house with a “gun in his hand.” He was a “Black man,” about 5 feet 10 inches tall, medium build, around 25 years old, wearing dark clothes. She did not identify defendant as the man with the gun.
Robert Jones, a landscape contractor “working at 15th and Florida that day,” observed the shooting from three blocks away. He described the shooter as Black, 18 to 20 years old, with hair that was perhaps two and a half inches long and may have been braided, wearing a hooded sweatshirt. The shooter was standing with his arm extended, about five feet from the victim, who was sitting on the ground. The shooter was angry and walked around in a circle after he repeatedly shot the victim.
Brenda Murry lived at her grandmother’s apartment on Marina Way near 13th Street and Maine when the shooting occurred. Buchanan was a family friend who came to the back door of Murry’s residence on the day of the shooting, and mentioned that he was meeting her cousin there.[3] About two or three minutes later, gunshots were fired nearby, followed by police cars “flying down the street.” Murry walked outside a minute or two later. Buchanan asked to use her phone and stayed in the apartment. Murry was only outside for “a couple of seconds” before she returned to the apartment. Defendant was still inside, on the phone. Buchanan made a total of 23 calls on Murry’s cell phone between 1:03 and 1:24 p.m., the last one to a taxicab company. He then left the apartment.
Considerable evidence of cell phone use on the day of the shooting was presented, much of it from Philip Venable, a “high tech investigator” with the Contra Costa County Sheriff’s Office, who qualified as an expert in cell phone records and call origins. Venable analyzed the records of calls made and received on the day of the murder for cell phones that belonged to defendant, the victim – who had Joanne Fountaine’s phone the day of the murder – and Brenda Murry – whose phone was used by Buchanan. Multiple calls between Buchanan, using Fountaine’s phone in the victim’s possession, and defendant, initiated from both parties, began at 11:52 a.m., with a call from Buchanan in Oakland to defendant in Richmond, followed by a call from defendant to Buchanan one minute later. The calls between the two phones continued thereafter, and culminated in a call from Buchanan to defendant at 12:56 p.m., just before the murder occurred, during which a voice mail message was left. Some of the calls did not go through, others resulted in conversations or voice mail messages that lasted up to nearly three minutes. As time passed, the locations of the two phones, as revealed by the cell sites or towers where the calls originated, grew increasingly close, until the last call was registered “at the same cell site” on Harbour Way in Richmond, which indicated that the two phones were then in very close proximity to each other and to the scene of the murder. At 12:59 p.m., the victim’s phone called Fountaine’s home phone from the same cell site for a duration of just over one minute. Thereafter, no calls were registered between defendant’s phone and the victim’s phone.
Of the numerous calls made by Buchanan on Murry’s phone immediately following the murder, seven attempted calls of two seconds or less in duration were made to defendant’s phone between 1:03 and 1:20 p.m. A connected call of very brief duration was made from defendant’s phone to Murry’s phone at 1:26 p.m. A total of 85 calls were made to the victim’s cell phone after the murder from nearby cell phone sites, but none were answered.
Testimony was also received from witnesses who were with defendant on the day of the murder. His girlfriend, Jessica Stitts, recalled that defendant was “very withdrawn” that day due to the death of a friend. Stitts drove defendant in her car to Fairfield, then to the south side of Richmond. Defendant directed her to drive to 9th Street in Richmond, near the location where the victim’s vehicle was found. She stopped the car, whereupon defendant got out of her car and “into another car” that “never moved,” and talked to a friend. Stitts testified that defendant was out of her car for 10 to 15 minutes, although she “wasn’t even paying attention.” He then returned and they drove back to Fairfield.
Maritza Vande Voorde, a counselor at Contra Costa College, testified that defendant had a counseling appointment with her around 2:00 p.m. the day of the murder. He missed the appointment, so Voorde called defendant, and he subsequently returned her call. Defendant sounded “upset,” and mentioned that a “friend of his was shot and killed” the day before.
Don Heidary was “very close” with defendant and his twin brother Karey since they were five years old. He regarded his relationship with defendant as similar to a godparent or uncle. In the days after the murder, Heidary learned that the police were looking for defendant in connection with the crime. Defendant said he had “nothing to hide,” so Heidary advised him to “go to the police.” Heidary and defendant’s brother Karey then facilitated defendant’s “surrender” to the police on the afternoon of August 25, 2005.[4] Defendant did not say anything to Heidary about the murder of Smith.
Heidary also testified that in numerous recorded telephone conversations during defendant’s incarceration, they discussed some of the details of the case – particularly the nature of the evidence, the prosecution’s witnesses, and defendant’s relationship with Buchanan – but defendant did not refer to the murder or the calls that came to his cell phone from Buchanan. Investigator Daryl Jackson, an investigating officer in the case, interviewed Heidary and reviewed the numerous recorded phone conversations between him and defendant that took place following defendant’s arrest. Heidary disclosed to Jackson that defendant “never told him of any relationship” with Buchanan, and did not give “an explanation” for the cell phone contacts with him on the day of the murder.
Paul Gaines considered the victim his “cousin,” and was close to him. After the murder of Smith, Gaines was briefly incarcerated for a domestic violence charge that was subsequently dismissed. While he was in jail, he was in the same module with defendant and they were often in contact. On one occasion, in the context of a discussion of the consequences of crimes and incarceration, defendant stated, “I wish I never did what I did to be in here,” and expressed that he was sorry. Defendant also mentioned that he “always kept” a handgun with him in his neighborhood, and had chased someone down in a park with his gun. While Gaines was incarcerated, he was not aware that defendant was associated with Smith’s murder. When Gaines told defendant and other inmates the story of Smith’s murder, however, and mentioned his name, defendant got a strange look on his face and thereafter no longer had any contact with Gaines during their joint incarceration. Gaines learned that defendant was accused of Smith’s murder only after he was released. He then told his cousin Shira Dennis that “he was in custody with the guy” who killed Smith.
DISCUSSION
I. The Admission of Torry Buchanan’s Preliminary Hearing Testimony.
Defendant argues that the trial court abridged his confrontation rights by admitting Buchanan’s preliminary hearing testimony at trial. After Buchanan gave his testimony at the preliminary hearing, the prosecution decided to charge him with the robbery and murder of Smith. The use immunity granted to Buchanan at the preliminary hearing was withdrawn, and he asserted his Fifth Amendment privilege not to testify at trial. Over objection by the defense, the trial court then found that Buchanan was an unavailable witness and admitted his preliminary hearing testimony, which was read to the jury. Defendant complains that the procedure whereby the prosecution granted a witness and codefendant use immunity to procure preliminary hearing testimony, then revoked the immunity to make the witness unavailable at trial, denied him the “right to cross-examine his co-defendant before his jury.”
We begin our analysis with recognition of an unassailable constitutional premise: “ ‘[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, . . . to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 538 [3 Cal.Rptr.3d 145, 73 P.3d 1137].) The “right of confrontation is not absolute, however [citations], ‘and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ [Citation.]” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138–1139 [99 Cal.Rptr.2d 149, 5 P.3d 203]; see also People v. Stritzinger (1983) 34 Cal.3d 505, 515 [194 Cal.Rptr. 431, 668 P.2d 738]; People v. Harris (1985) 165 Cal.App.3d 1246, 1257 [212 Cal.Rptr. 216].) In particular, the right of confrontation “does not preclude the prosecution from proving its case through the prior testimony of a witness who is unavailable at trial, so long as the defendant had the right and the opportunity to cross-examine the witness during the earlier proceeding at which the witness gave this testimony.” (People v. Cudjo (1993) 6 Cal.4th 585, 618 [25 Cal.Rptr.2d 390, 863 P.2d 635].) “ ‘If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial.’ [Citations.]” (People v. Seijas (2005) 36 Cal.4th 291, 303 [30 Cal.Rptr.3d 493, 114 P.3d 742].)
Also indisputable is the principle that a witness, upon proper assertion of the privilege against self-incrimination, is unavailable as a witness at trial. (People v. Duarte (2000) 24 Cal.4th 603, 609–610 [101 Cal.Rptr.2d 701, 12 P.3d 1110].) “Evidence Code section 240, subdivision (a) defines unavailable witnesses as any of five types of witnesses. A witness who is exempted from testifying on the ground of privilege is defined as one type.”[5] (People v. Williams (2008) 43 Cal.4th 584, 625 [75 Cal.Rptr.3d 691, 181 P.3d 1035].) “A witness who successfully asserts the privilege against self-incrimination is unavailable to testify for these purposes.” (People v. Seijas, supra, 36 Cal.4th 291, 303.) Here, Buchanan successfully asserted the privilege at trial. The fact that he did not assert the privilege at the preliminary hearing did not foreclose him from doing so at trial. (Id. at p. 303; People v. Malone (1988) 47 Cal.3d 1, 23 [252 Cal.Rptr. 525, 762 P.2d 1249].)
We recognize that “ ‘[t]o be found unavailable on this ground, a witness must not only intend to assert the privilege, but also be entitled to assert it.’ [Citation.]” (People v. Seijas, supra, 36 Cal.4th 291, 303.) The witness in the case before us had been charged with murder before trial, and his use immunity had been revoked by the prosecutor. The trial court correctly concluded that Buchanan “reasonably apprehended danger if he testified.” (Id. at p. 306.) Also indisputable is that Buchanan asserted he would refuse to testify as to any matter to which he had testified at the preliminary examination. (People v. Farmer (1983) 145 Cal.App.3d 948, 951 [193 Cal.Rptr. 788].) We find, as did the trial court, that Buchanan was entitled to assert the privilege, and defendant does not suggest otherwise.
More difficult issues related to admissibility of Buchanan’s preliminary hearing testimony remain: whether defendant had an adequate opportunity to cross-examine Buchanan at the preliminary hearing; and whether the prosecutor acted improperly by procuring the unavailability of the witness. The facts pertinent to the witness’s assertion of the privilege are essentially undisputed, so we independently review the trial court’s ruling that declared the witness unavailable. (People v. Seijas, supra, 36 Cal.4th 291, 303.)
A. Defendant’s Opportunity to Cross-Examine the Witness.
Defendant objects that he was not given an “adequate opportunity to cross-examine” Buchanan at the preliminary hearing. Under the recognized exception to the rule that a criminal defendant has the right to confront the witnesses against him (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), the testimonial statements of witnesses absent from trial may be “ ‘admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ [Citations.] Evidence Code section 1291 codifies this traditional exception. [Citation.] When the requirements of Evidence Code section 1291 are met, ‘admitting former testimony in evidence does not violate a defendant’s right of confrontation under the federal Constitution. [Citations.]’ [Citation.] [¶] Evidence Code section 1291, subdivision (a)(2), provides that former testimony is not rendered inadmissible as hearsay if the declarant is ‘unavailable as a witness,’ and ‘[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 340–341 [30 Cal.Rptr.3d 513, 114 P.3d 758]; see also People v. Gonzales (2005) 131 Cal.App.4th 767, 774 [32 Cal.Rptr.3d 172].)
“The recent decision of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354], although changing the law of confrontation in some respects, left these principles intact.” (People v. Seijas, supra, 36 Cal.4th 291, 303.) “ ‘[A]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1173–1174 [32 Cal.Rptr.3d 759, 117 P.3d 476]; see also United States v. Owens (1988) 484 U.S. 554, 559 [98 L.Ed.2d 951, 108 S.Ct. 838].) “[A] prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766 [78 Cal.Rptr.2d 265].)
“Under these rules,” the California Supreme Court has “ ‘routinely allowed admission of the preliminary hearing testimony of an unavailable witness.’ [Citation.]” (People v. Seijas, supra, 36 Cal.4th 291, 303.) Here, the preliminary hearing and trial proceedings were of the “same type, i.e., criminal, the trial strategy (discredit the witness and claim innocence) was the same; the potential penalty (incarceration) was the same; and the issue and parties were the same.” (People v. Gonzales, supra, 131 Cal.App.4th 767, 775; see also People v. Samayoa (1997) 15 Cal.4th 795, 850–851 [64 Cal.Rptr.2d 400, 938 P.2d 2].) Our review of Buchanan’s preliminary hearing testimony also reveals that defense counsel undertook a thorough and effective cross-examination of the witness. Buchanan’s numerous prior fabrications, his motives to falsify, and his own potential culpability for the murder, were comprehensively explored at the preliminary hearing.
Defendant nevertheless complains that several factors demonstrate the inadequacy of his opportunity to cross-examine Buchanan at the preliminary hearing. First, he points out that the cell phone records so consequential to the prosecution’s effort to substantiate Buchanan’s version of the murder were not available to the defense until after the preliminary hearing. He maintains that without prior discovery of the cell phone records his counsel “was unable to investigate them before the preliminary examination,” and therefore could not properly cross-examine Buchanan on a matter “which constituted almost the sole arguable corroboration of Buchanan’s testimony.”
We are not convinced that the cross-examination of Buchanan by the defense at the preliminary hearing was compromised by the lack of prior access to cell phone records. “ ‘[A] defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. . . .’ [Citation.]” (People v. Valencia (2008) 43 Cal.4th 268, 293–294 [74 Cal.Rptr.3d 605, 180 P.3d 351].) At the preliminary hearing the defense was aware that the victim’s cell phone was found in the car after the murder, and on cross-examination defense counsel probed Buchanan’s testimony that he used the victim’s cell phone to contact defendant. Thus, the defense had a reason and at least the opportunity to elicit testimony from Buchanan about the extent of his cell phone conversations with defendant at the preliminary hearing. We also do not think any cross-examination of Buchanan on the subject of cell phone records by the defense at trial would have resulted in a more successful challenge to the reliability of his testimony.[6] (See People v. Wilson, supra, 36 Cal.4th 309, 345–346.) “ ‘As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity.’ [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 611–612 [134 Cal.Rptr.2d 1, 68 P.3d 302].) Further, at trial the defense had the cell phone records, and managed to engage in cross-examination and argument as to their import in the case.
We also disagree with defendant’s assertion that cross-examination of the witness at trial was necessary to bring out “whether Buchanan was expecting or being given any benefits in his own case in exchange for his testimony.” The defense had the opportunity to cross-examine Buchanan at the preliminary hearing about any advantage he expected to receive from his testimony at that proceeding. When circumstances changed at trial the defense fully explored the matter of any promise of leniency through the cross-examination of officers at trial. By that stage of the proceedings the prosecution elected not to grant Buchanan immunity, and thus had no reason to offer him leniency. Nothing in the record suggests any sort of preexisting arrangement, either explicit or implicit, between Buchanan and the prosecution. Additionally, defendant does not allude to any evidence of favors offered the witness by the government. Cross-examination of Buchanan at trial about his cooperation with law enforcement would not have significantly altered the jury’s view of his credibility. (See People v. Wilson, supra, 36 Cal.4th 309, 345.)
Nor are we receptive to defendant’s claim that “the jury should have been able to observe Buchanan’s demeanor” at trial, particularly in light of his fabrications to the police and denial of a “gay relationship” with the victim. Live testimony of a witness, which grants the trier of fact an opportunity to observe demeanor, is always preferable to former testimony, but no more so in the present case just because the witness may have falsely denied complicity in the crime or had some form of intimate relationship with the victim. The preference for face-to-face cross-examination at trial has been found to be outweighed by recognized competing interests that warrant dispensing with the right of confrontation under circumstances where the defense had the opportunity to cross-examine the witness at the previous hearing with an interest and motive similar to that which he has at the subsequent hearing. (Ohio v. Roberts (1980) 448 U.S. 56, 63 [65 L.Ed.2d 597, 100 S.Ct. 2531]; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1434 [105 Cal.Rptr.2d 504].) “[I]t is settled that the preference for live testimony gives way when the witness properly invokes the privilege against self-incrimination and a prior appropriate opportunity for cross-examination existed.” (People v. Williams, supra, 43 Cal.4th 584, 623; see also People v. Reed (1996) 13 Cal.4th 217, 225–226 [52 Cal.Rptr.2d 106, 914 P.2d 184].) The inability of the jury to view Buchanan’s demeanor at trial did not negate his status as an unavailable witness.
B. The Refusal of the Prosecution to Grant the Witness Immunity.
We move to defendant’s contention that the prosecutor committed misconduct by failing to grant Buchanan immunity at trial, and the trial court therefore erred by finding that he was an unavailable witness. He relies on Evidence Code section 240, subdivision (b), to argue that where the unavailability of a witness is procured by the proponent for the purpose of preventing the witness from testifying, the witness is not unavailable. The definitions of an unavailable witness specified in subdivision (a) of Evidence Code section 240, are expressly subject to an exception “provided in subdivision (b).” Subdivision (b) of Evidence Code section 240 (section 240), provides: “A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.” Defendant claims that the “prosecutor’s acts of granting, and then withdrawing, immunity” to Buchanan constituted “wrongdoing” that “procured” the unavailability of the witness. He asserts that the evidence shows the prosecutor “intentionally” withheld immunity from the witness “simply for the purpose of keeping Buchanan unavailable, so he could read Buchanan’s former testimony to the jury. This testimony establishes the purpose prong in [section] 240(b), namely, that the prosecutor withdrew the immunity grant in order to prevent Buchanan from testifying” at trial.
Our inquiry proceeds from the established premise that neither the prosecution nor the trial court was obligated to confer immunity upon Buchanan at trial. The courts have “recognized that the power to confer immunity is granted by statute to the executive, that is, to the prosecution (see [(Pen. Code,] § 1324), and have questioned whether a trial court possesses inherent authority to grant such immunity.” (People v. Stewart (2004) 33 Cal.4th 425, 468 [15 Cal.Rptr.3d 656, 93 P.3d 271].) In fact, the California Supreme Court has definitively declared: “The grant of immunity is an executive function, and prosecutors are not under a general obligation to provide immunity to witnesses in order to assist a defendant. [Citations.] Similarly, we have expressed reservations concerning claims that trial courts possess inherent authority to grant immunity [citation], and even assuming the court possesses such authority, it has been recognized only when the defense has made a showing that a defense witness should be afforded immunity in order to provide clearly exculpatory testimony.” (People v. Williams, supra, 43 Cal.4th 584, 622–623.)
The federal due process test, which essentially mirrors the California standard delineated in section 240, subdivision (b), also recognizes the “ ‘exclusive authority and absolute discretion’ ” vested in the prosecution to grant immunity to a witness, and intrudes upon that discretion only where the prosecution violates the defendant’s right to a fair trial by refusing to grant use immunity to a witness whose testimony would have been relevant “ ‘with the deliberate intention of distorting the fact-finding process.’ ” (United States v. Straub (9th Cir. 2008) 538 F.3d 1147, 1156; see also Williams v. Woodford (9th Cir. 2004) 384 F.3d 567, 600; Woods v. Adams (C.D.Cal. 2009) 631 F.Supp.2d 1261, 1279–1280.) Intentional distortion of the fact-finding process requires government action that amounts “to something akin to prosecutorial misconduct.” (United States v. Straub, supra, at p. 1157.)
We therefore focus on the prosecutor’s motives for withholding immunity from Buchanan. In so doing, we do not find that the unavailability of the witness was procured by the prosecutor’s misconduct for the wrongful purpose of preventing his testimony at trial. To establish a violation of his confrontation rights through misconduct by the prosecutor that resulted in the deprivation of testimony of a witness, the defendant must establish three elements: first, prosecutorial misconduct that was entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify; second, the prosecutor’s misconduct was a substantial cause in depriving the defendant of the witness’s testimony; and third, the testimony defendant was unable to present was material to his defense. (People v. Lucas (1995) 12 Cal.4th 415, 457 [48 Cal.Rptr.2d 525, 907 P.2d 373]; People v. Woods (2004) 120 Cal.App.4th 929, 936 [16 Cal.Rptr.3d 174].)



TO BE CONTINUED AS PART II….


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