Superior Court of Contra Costa County, No. 50718130, Mary Ann O‟Malley, Judge. (Contra Costa County Super. Ct. No. 050718130)
The opinion of the court was delivered by: Jones, P.J.
CERTIFIED FOR PUBLICATION
The People charged appellant Markel Ray Morgain with first degree murder (Pen. Code, § 187).*fn1 At trial, appellant‟s girlfriend, Marquita Wallace, refused to answer questions about the incident and the trial court struck all of her testimony. The court, however, permitted the prosecutor to contend during closing argument that Wallace refused to testify to protect appellant. A jury convicted appellant and the court sentenced him to 51 years to life in state prison.
Appellant challenges his conviction on several grounds. First, he contends the court violated his Sixth Amendment right of confrontation by permitting the prosecutor to continue to question Wallace after she made it clear she would not answer any additional questions. Second, he argues the court violated his constitutional rights to confrontation and due process by allowing the prosecutor, during closing argument, to urge the jury to draw a negative inference from Wallace‟s refusal to testify. Finally, appellant claims he is entitled to an additional day of presentence custody credit.
We agree with appellant‟s final contention and conclude he is entitled to 249 days of presentence custody credit, not 248 days. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2007, appellant‟s cousin, Cecil Walker, was at his apartment on Trigger Road in Rodeo when he heard noise behind the apartment complex. He walked outside and saw appellant playing dice behind the complex with several people, including Corey "Corndog" Tidwell.*fn2 Walker noticed appellant was wearing a white t-shirt and jeans and wore his hair in short cornrows that were "close to the head." Walker wore similar clothing, but his hair was in a close shave.
Walker saw appellant pull a gun from his waist and point it at Tidwell. Walker heard gunshots; then Tidwell yelled, "Quit, Boo" and "Don‟t do it. Don‟t do it, not me." Walker ran away because he was "[a]fraid of shots being fired and one hit[ting] [him]." He did not have a gun and did not shoot Tidwell. During an interview with Detective Michelle Day, Walker initially lied about witnessing the incident because he feared being perceived as a "snitch." Walker eventually told Day what he saw. At trial, Walker admitted being a convicted felon and receiving immunity for his testimony.
On the day of the incident, 12-year-old Eli. was at her friend Michelle‟s residence at the apartment complex on Trigger Road when she saw a Black man behind the complex. The man was pointing a gun at Tidwell. Tidwell ran and Eli. heard one or two gunshots. Tidwell slipped and fell to the ground; the man ran up to him and shot him several times. Then he took money from Tidwell‟s wallet and ran. The man was about six feet tall and wore his hair in eye-level dreadlocks. Detective Day showed Eli. a picture of appellant and she recognized him as the person who shot Tidwell. She also told Day, however, that appellant "[k]ind of" looked like the man who shot Tidwell. Eli. was not able to identify appellant at trial and conceded she did not want to testify because she was scared. Eli. did testify, however, that Walker did not shoot Tidwell.
Michelle was at the apartment complex with Eli. when she heard four or five gunshots. She looked out her apartment window and saw Tidwell on the ground; then she saw a man run up to Tidwell and start shooting at him. The shooter went through Tidwell‟s pockets and ran toward the back of the apartment complex. Michelle did not get a good look at the shooter‟s face, but she saw he was a light-skinned Black man. She thought the shooter had "a little bit of hair" but not dreads or "twisties."*fn3 Michelle was not able to identify the shooter when she spoke to police after the incident.
Brittany Tozier-Ricketts was in her apartment when she heard "fire cracker sounds." She looked out her front door and saw three men, one of whom had a gun in his hand. She saw the victim run and the man with the gun shoot in the victim‟s direction. The third man - who did not have a gun - ran along a path between two buildings. At that point, the shooter "fire[d] off a couple more rounds[.]" Ricketts was unable to see more because her mother-in-law and sister-in-law blocked her view.
According to Ricketts, the shooter was Black, had a "[l]ight to medium" skin tone, and was wearing a white t-shirt and jeans. He had short hair that "looked like it was shaved closely to the head." Ricketts did not pay much attention to the shooter‟s hair, but she remembered it "looked kind of short" and was not braided. Ricketts did not get a good look at the shooter‟s face and was unable to identify him in a photo lineup. At trial, Ricketts testified that although she could not be sure, appellant looked similar to the shooter because of his hair, skin tone, and build.
Ricketts‟s mother-in-law, Lynda Tozier, was also in her apartment when she heard what she thought were fire crackers. Tozier called 911 and ran outside. She saw Walker in the parking lot, running towards his apartment. He did not have a gun in his hands. She also saw another man "running around back of the apartments." She did not see the other man‟s face or hands but she noticed he was wearing a white t-shirt and jeans and had a "close-shaved" hairstyle. After the two men ran away, Tozier walked toward the victim‟s body and noticed he was "already deceased."
Tozier‟s daughter, Chartina, saw a Black man shoot at Tidwell, go through his pockets, and run away. Chartina did not get a good look at the shooter‟s face, but she noticed he was between 5‟9" and 6 feet tall, had a relatively slender build, and had a short, clean-cut hairstyle. The shooter did not have dreadlocks or "twisties." The shooter had a medium skin tone and wore a white t-shirt and jeans. At trial, Chartina testified that appellant‟s skin tone, hair, and height looked similar to the shooter‟s.
Tidwell‟s stepson saw several people, including appellant and Tidwell, playing a game of dice on the day of the incident. Appellant was wearing blue jeans and a white t-shirt and wore his hair in "twistees" which hung down to his earlobes.
Detective Day investigated the incident. She determined appellant was 25 years old, 5‟9," and weighed approximately 165 pounds. Appellant had "short hair, possibly cornrows . . . [with] some little braids hanging down" a few inches below his ears. Day showed Eli. a photo lineup; when Eli. saw appellant‟s picture, she gasped, "her eyes got big, and she nodded her head up and down in a yes motion." Eli. said she saw appellant at the YMCA earlier that week and again on the day of the incident, ""[w]hen he shot‟" Tidwell. Eli. also said appellant had "short dreads" on the day of the incident. She told Day, however, she could not be completely sure appellant was the person who shot Tidwell because a lot of people in the neighborhood look alike. Police found the handgun used during the incident but were unable to locate any fingerprints or DNA on it.
Marquita Wallace's Refusal to Testify
The People advised the court they intended to call Wallace, appellant‟s girlfriend, as a witness at trial. They sought - and obtained - a subpoena on the grounds that she was a material witness because she told police appellant confessed to the shooting. The police located Wallace and kept her on house arrest until trial.
Before trial, defense counsel filed a motion in limine asking the court to "resolve the prosecution‟s primary witness, Marquita Wallace‟s issue on whether she will exercise her Fifth Amendment right and not testify, whether the prosecution will grant her immunity or whether she will refuse to comply with any court order compelling her to testify." Defense counsel contended that if Wallace chose not to testify, "any and all previous statements [she] made to police concerning Mr. Morgain‟s involvement [in the incident] should be excluded as a violation of his Sixth Amendment Right and Due process rights to confront . . . witnesses against him[.]"
At the hearing on the motion, Wallace‟s counsel informed the court that if called to testify, Wallace would invoke her privilege against self-incrimination because of a pending felony charge. The court advised the parties that if Wallace asserted the privilege, it would permit the prosecution to offer Wallace immunity. If the prosecution offered Wallace immunity, then "she‟ll be given that [immunity] and instructed to answer the questions. We‟ll bring in the jury. We‟ll have her asked questions and see what she does." If Wallace continued to refuse to answer, the court stated it would "order [her] to answer . . . with the penalty of possibly being held in contempt, and we‟ll see what she does, and then we‟ll go from there."
During trial, Wallace informed the court she would refuse to testify even if the prosecutor granted her use immunity. After the prosecutor agreed to grant Wallace immunity, the court ordered her to testify. Wallace took the witness stand and testified she was appellant‟s girlfriend and the mother of his child. Wallace stated she lived with appellant when the incident occurred. When the prosecutor asked Wallace whether she knew a man named Victor Campbell, she responded, "I ain‟t answering it." After the court ordered Wallace to answer the question, she admitted Campbell was her cousin and that he spent time with appellant. Wallace ...