Filed 9/29/17 P. v. Marcelo CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Following a jury trial, defendant Jaime Marcelo was found guilty of the forcible rape, statutory rape, pimping, and pandering of L.O. and not guilty of human trafficking and false imprisonment of the same victim. He was sentenced to eight years eight months in state prison and timely appeals. We modify the judgment to correct the amount of the penalty assessments imposed on each of the three sex offender fines and, as so modified, affirm the judgment.

DISCUSSION

Andres Velasquez’s Refusal to Testify

Defendant raises three interrelated claims relating to the refusal of his brother, Andres Velasquez, to testify at trial. We begin our analysis with a review of facts underlying the claims.

Factual Background

Velasquez first appeared in court on February 2, 2015, the day of jury selection, in response to a subpoena by the prosecution. The trial court appointed counsel to represent him and directed him to return to court a week later.

When Velasquez returned to court on February 9, 2015, the prosecutor and Velasquez’s counsel advised the trial court he would likely assert his Fifth Amendment privilege against self-incrimination if called to testify at defendant’s trial. They also advised the trial court that they were discussing a potential immunity agreement under which Velasquez would be compelled to testify. The trial court directed them to continue their discussions in this regard and ordered Velasquez to return to court two days later.

On February 11, 2015, Velasquez took the stand outside the presence of the jury. He testified that he was 24 years old and that defendant was his brother, Erica Velasquez was his sister, and Leticia Barajas was his mother. He declined to answer the prosecutor’s follow-up questions, asserting his Fifth Amendment privilege against self-incrimination. At this point, the prosecutor petitioned the trial court for a grant of use immunity so that Velasquez could be compelled to testify. The trial court granted the request, explaining to Velasquez that he would now be required to answer the prosecutor’s questions pursuant to the grant of use immunity. Velasquez confirmed his understanding in this regard.

Later that morning, before Velasquez took the stand, his counsel advised the trial court that, notwithstanding the grant of immunity, he would not answer the prosecutor’s questions. The prosecutor requested that she be allowed to ask Velasquez questions to see if he would answer them when ordered to do so. Defense counsel objected that “there is no reason to do that before the jury, and there is no reason to have him held in contempt of Court before the jury.” The prosecutor argued that she should be permitted to question Velasquez before the jury, noting that he had answered some preliminary questions before invoking his Fifth Amendment privilege and that he might answer her questions when faced with contempt of court if he failed to do so. The trial court agreed the prosecutor could question Velasquez before the jury but ruled any contempt proceedings, should they prove necessary, would be heard outside the presence of the jury.

At this point, Velasquez took the witness stand before the jury. Initially, he refused to comply with the clerk’s request that he state and spell his name but complied when the trial court directed him to do so. The prosecutor proceeded to ask defendant five questions, including his age, whether he had any siblings, whether he knew defendant, whether defendant was his brother, and whether he had a sister. Defendant refused to answer any of the five questions notwithstanding the trial court’s directive that he does so.

The trial court warned Velasquez that, in light of the grant of immunity, he had no right to refuse to answer the questions and that his continued refusal to do so would constitute contempt of court. Velasquez confirmed that he would not comply with the trial court’s order to answer the questions and, after the jury was excused, the trial court held him in contempt of court. The trial court ordered Velasquez into custody until he agreed to answer the questions posed to him. Velasquez was given the option of testifying each day of his confinement but declined to do so and was eventually released after the close of evidence on February 26, 2015.

After the close of evidence, the trial court addressed the prosecutor’s request that the jury be instructed as follows: “Andres Velasquez did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations.” Defense counsel argued the instruction was not warranted because defendant did not have anything to do with Velasquez’s refusal to testify. The trial court disagreed, citing People v. Morgain (2009) 177 Cal.App.4th 454, and proceeded to instruct the jury as requested.

During her closing argument, the prosecutor briefly referenced Velasquez’s refusal to testify, arguing, “His brother refused to testify. The Judge told you that you can actually use this in your deliberations. Why didn’t Andres testify? Probably to protect his brother. Probably didn’t have anything helpful at all to say. How difficult would it have been to say that’s not his phone? This number, these records belong to the defendant.”

Legal Analysis

Defendant asserts the trial court violated his Sixth and Fourteenth Amendment rights by (1) allowing the jury to witness Velasquez’s refusal to testify, (2) instructing the jury it could consider his refusal to testify in its deliberations, and (3) allowing the prosecutor to make speculative arguments regarding his refusal to testify. Defendant’s claims are premised on “the policies underlying the many cases holding that a Fifth Amendment privilege should not be invoked in front of the jury.” Those policies are inapposite here.

“Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. These points are well established by existing case law.” (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.) Where, however, “a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Ibid.; People v. Murillo (2014) 231 Cal.App.4th 448, 458; People v. Morgain, supra, 177 Cal.App.4th at p. 466.)

In the present matter, the prosecutor asked Velasquez just five background questions regarding his age and family relationships, all of which he refused to answer. The trial court found that, having been granted immunity, Velasquez had no constitutional or statutory right not to testify and ordered him to answer the questions. Following his refusal to do so, the prosecutor refrained from questioning Velasquez and other witnesses on damaging out-of-court statements he had previously given to the police. The instant case is, therefore, readily distinguishable from those in which “a prosecutor examines a recalcitrant witness and poses questions that relate to prior statements made by that witness, in circumstances where the witness’s recalcitrance effectively prevents cross-examination concerning those prior statements.” (People v. Morgain, supra, 177 Cal.App.4th at p. 463.)

People v. Murillo, supra, 231 Cal.App.4th 448, is instructive in this regard. In that case, “[a] prosecution witness [took] the witness stand but refuse[d] to answer any questions. The trial court allow[ed] the prosecutor to ask the witness more than 100 leading questions concerning the witness’s out-of-court statements to prove defendant guilty of several criminal offenses. The questions create[d] the illusion of testimony.” (Id. at pp. 449–450.) The appellate court concluded this procedure “deprived defendant of a fair trial because he could not exercise his constitutional right of cross-examination.” (Id. at p. 450.) The court specifically contrasted cases, such as the present one, in which the examination of the recalcitrant witness is properly limited, noting that in those cases a jury is “entitled to draw negative inferences from his refusal to answer questions.” (Id. at p. 458.)

We decline defendant’s invitation to distinguish or disavow this line of authority on the ground that “the refusal itself had no relevance beyond inferring that Mr. Velasquez’s testimony was inherently harmful to [defendant].” Contrary to defendant’s assertion, Velasquez’s refusal to testify did not occur in an evidentiary vacuum. Rather, it corroborated other evidence of Velasquez’s efforts to protect defendant. For example, the victim testified that after defendant’s arrest, she saw Velasquez drive to the bank in front of her house. According to the victim, “sometimes he would just stay there and just look at—towards my house,” which “scared” her. In addition, after Velasquez refused to testify, the prosecution presented testimony from a cell phone forensics investigator from which the jury could reasonably conclude that Velasquez had attempted to conceal text messages he had received from defendant by deleting the contact information for “Jaime” (defendant’s first name) from a cell phone.[1]

Under these circumstances, the trial court did not err in allowing the jury to witness Velasquez’s refusal to testify, in instructing the jury it could consider the refusal in its deliberations, or in allowing the prosecutor to argue Velasquez refused to testify in order to protect defendant.

Penalty Assessment Issues

Penal Code section 290.3, subdivision (a),[2] provides that every person convicted of any offense specified in section 290, subdivision (c), “shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction.” In this case, defendant was convicted of forcible rape (§ 261, subd. (a)(2)), pimping (§ 266h, subd. (b)(1)), and pandering (§ 266i, subd. (b)(1)), each of which is an offense specified in section 290, subdivision (c).

Based on this statute, the trial court imposed a base fine of $300 for defendant’s rape conviction and base fines of $500 each for his pimping and pandering convictions. The trial court also stated that, with penalty assessments, the totals were $1,230 for the rape conviction and $2,050 each for the pimping and pandering convictions. The trial court’s ruling is reflected in the abstract of judgment as follows: “Per PC 290.3 as to Counts 1,3,4 pay $5,330.00 fine (total amount of fine with penalties & assessments).”

While the trial court properly computed the amounts of the base fines, its computation of the corresponding penalty assessments was in error. Because defendant committed his crimes in 2010, the penalty assessments should have totaled 300 percent for each of the three fines, rather than 310 percent as computed by the trial court. (People v. Hamed (2013) 221 Cal.App.4th 928, 940–941 [enumerating the seven applicable penalty assessments].) Moreover, the amount and statutory basis for each base fine and the amount and statutory basis for each penalty assessment should have been listed in the abstract of judgment. (Id. at p. 940.)

DISPOSITION

The judgment is modified as follows:

On count one, forcible rape (§ 261, subd. (a)(2)), defendant is ordered to pay a sex offender fine of $300 pursuant to section 290.3, subdivision (a). In addition, defendant is ordered to pay the following penalty assessments on the count one sex offender fine: (1) a $300 state penalty assessment (§ 1464, subd. (a)(1)); (2) a $210 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (3) a $60 state surcharge (§ 1465.7, subd. (a)); (4) a $150 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); (5) a $60 penalty for emergency medical services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a $30 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a $90 state-only DNA penalty (Former Gov. Code, § 76104.7, subd. (a)). The total amount of penalty assessments on the count one sex offender fine is $900.

On count three, pimping (§ 266h, subd. (b)(1)), defendant is ordered to pay a sex offender fine of $500 pursuant to section 290.3, subdivision (a). In addition, defendant is ordered to pay the following penalty assessments on the count three sex offender fine: (1) a $500 state penalty assessment (§ 1464, subd. (a)(1)); (2) a $350 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (3) a $100 state surcharge (§ 1465.7, subd. (a)); (4) a $250 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); (5) a $100 penalty for emergency medical services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a $50 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a $150 state-only DNA penalty (Former Gov. Code, § 76104.7, subd. (a)). The total amount of penalty assessments on the count three sex offender fine is $1,500.

On count four, pandering (§ 266i, subd. (b)(1)), defendant is ordered to pay a sex offender fine of $500 pursuant to section 290.3, subdivision (a). In addition, defendant is ordered to pay the following penalty assessments on the count four sex offender fine: (1) a $500 state penalty assessment (§ 1464, subd. (a)(1)); (2) a $350 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (3) a $100 state surcharge (§ 1465.7, subd. (a)); (4) a $250 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); (5) a $100 penalty for emergency medical services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a $50 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); and (7) a $150 state-only DNA penalty (Former Gov. Code, § 76104.7, subd. (a)). The total amount of penalty assessments on the count four sex offender fine is $1,500.

As so modified, the judgment is affirmed.

The clerk of the trial court is directed to prepare an amended abstract of judgment that sets forth the amount of and statutory basis for each of the sex offender fines and the amount of and statutory basis for each of the penalty assessments as set forth above, and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Jenkins, J.