IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
December 14, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JESSI LUIS GARCIA, DEFENDANT AND APPELLANT.
(Sonoma County Super. Ct. No. SCR521234)
The opinion of the court was delivered by: Simons, J.
P. v. Garcia
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jessi Luis Garcia (appellant) appeals his conviction by jury trial of misdemeanor assault (Pen. Code, § 240)*fn1 (count 1),*fn2 resisting or obstructing an executive officer (§ 69) (count 2), auto burglary (§ 459) (count 4), and receiving stolen property (§ 496, subd. (a)) (count 5).*fn3 In a bifurcated court trial, the court found true two prior strike allegations. On appeal, appellant contends the prosecution failed to disclose the arresting police officer's taser log in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and engaged in misconduct during argument; the court erred in granting immunity to a prosecution witness and committed sentencing error; and defense counsel provided ineffective assistance of counsel. Appellant argues, and the People concede, that, pursuant to section 654, the six-month term imposed for the misdemeanor assault should be stayed. We accept with the concession and otherwise affirm.
Sometime between 5:00 and 5:30 a.m. on October 4, 2007, Nicholas Martinez was awakened by what sounded like a vehicle with a loud muffler. A short time later, he heard the same noise again. He then saw a light-colored Blazer park across the street from his home on Cypress. Martinez saw two men get out of the Blazer wearing long pants and black sweatshirts with their hoods up. One of the men stayed at the corner acting like a lookout. The other man crossed the street and was outside of Martinez' view. After watching the man at the corner for five or six minutes, Martinez called the police. A few minutes later, the man who had initially crossed the street out of view returned carrying a backpack and joined the man at the corner. The two men then ran together to the Blazer. They entered the Blazer and drove off while Martinez was still on the phone with the police.
At about 5:20 a.m., Michael Adamson was inside his garage on Greencrest Drive when he heard a "ruckus" outside the garage door. He heard a police officer loudly saying, "let me see your hands," and "get on the ground." When Adamson looked out the window he saw two men "going at it," with one "trying to contain the other" and one "trying to get away from the other." The man who was trying to get away managed to cross the street with the officer grabbing onto him. Adamson then heard whining and moaning as the two men rolled on the ground. After a couple of minutes, two other officers arrived to assist.
Santa Rosa Police Officer Hepp was on patrol when he received a dispatch at 5:21 a.m. regarding a possible auto burglary. Hepp did not see the Blazer at the dispatch location, but continued driving in the direction the Blazer was reported to have gone. He then saw the Blazer, activated his patrol car's lights and pursued it. The Blazer slowed, the driver's door opened and the driver, later identified as appellant, jumped out while the Blazer was still moving and took off running. Hepp parked the patrol car and pursued appellant on foot. Appellant ignored Hepp's yelling for him to stop and ran fast, swinging his arms at his sides. As Hepp got closer, appellant stopped swinging his arms, and then appellant began running with his hands tucked in front of his body. Fearing that appellant might have a weapon, Hepp drew his firearm and yelled for appellant to stop and show his hands.
Appellant stumbled and fell, then jumped up and continued running between two houses, with Hepp in pursuit. While running between the houses in the dark, Hepp felt appellant's body crash into him and holstered his firearm. Both Hepp and appellant fell to the ground. They struggled and Hepp attempted to take appellant into custody. For about two minutes, appellant kept trying to grab Hepp's firearm despite Hepp's telling him to let go and that Hepp would shoot him.
Hepp felt himself tiring, grabbed his taser, and fired the cartridge with two probes at appellant, hoping to strike any part of appellant's body. Appellant yelled but continued to struggle, swinging at Hepp's hands and arms, trying to knock the taser out of Hepp's hands. When his taser stopped working, Hepp began using his hand, forearm and elbow to strike appellant in the upper chest, face and neck. Hepp was "extremely exhausted." He then applied the taser in "contact mode" to appellant's neck and appellant fell backward. Hepp was unable to pull appellant's arms out from under him but was able to radio other officers his location. Two other officers arrived and assisted Hepp in taking appellant into custody.
As a result of his struggle with appellant, Hepp suffered abrasions to his hand, which bled slightly, and his police uniform had multiple tears. In the area where Hepp and appellant struggled, Hepp found a pair of black gloves, a flat-tipped screwdriver, a black flashlight, and a single probe from Hepp's taser. A second taser probe was found on the neckline of appellant's sweatshirt. This matched up with the two marks on appellant's neck where a probe was removed.
Brandon Rhoades and Karissa Amante were inside the Blazer when it was stopped by police. A black backpack, a purse, and a CD (compact disc) case containing CD's were found on the Blazer's rear floorboard. Empty fast food wrappers and other garbage were strewn about the vehicle. A flashlight and various tools, including pliers, screwdrivers, and a window punch were also found inside the Blazer. A black baseball batting glove was found on the sidewalk outside the Blazer's passenger door.
Santa Rosa Police Officer Ellsworth took a statement from Martinez, who directed Ellsworth to the suspected auto burglary scene. Martinez identified the Blazer as the one he had seen driving away from in front of his residence. Ellsworth contacted Nicole Andrews and asked her to check her car to see if anything was missing. Andrews reported that her purse was missing from her Honda, which had been locked and was parked in her driveway. The Honda was unlocked, items were scattered inside, the weather stripping on the passenger window was torn and it appeared the window had been pried. Andrews identified the purse found inside the Blazer as her missing purse. Anthony Mohrman, whose car was parked near Andrews's, identified the black backpack recovered from the Blazer as the backpack missing from his car.
Amante, a friend of appellant, testified that on the morning of October 4, 2007, she and appellant were in appellant's yellow Blazer going to get something to eat. En route to a Jack-in-the-Box restaurant, they stopped, exited the Blazer and Amante grabbed a backpack out of a car. She and appellant then entered the Blazer. As they drove, Amante called Rhoades, her friend, and told him about a purse she and appellant had seen inside a car. According to Amante, Rhoades "breaks into cars better than anybody I know." Appellant and Amante then picked up Rhoades, and went back to the neighborhood where they had been. Appellant and Rhoades got out while Amante waited inside the Blazer. When appellant and Rhoades returned, Rhoades had the purse. As they drove off they saw a police car behind them. Appellant began turning corners quickly and then took off running from the car. After the Blazer rolled to a stop, police officers approached.
On cross-examination, Amante said that the morning of the incident, she spoke separately to Hepp and two other officers. She said that when Hepp asked her what had happened she probably said, "Nothing. I just got back from Jack-in-the-Box, and then we were stopped." She then said she could not remember whether she told Hepp that nothing happened. She also said she might have told Hepp, "Nothing happened. I don't break into any cars or houses," and she probably told Hepp, "I don't know why [appellant] ran." She also said Hepp was rude and did not believe her story. Two weeks after the incident, Amante and Rhoades were arrested for committing another burglary. In exchange for pleading guilty to that burglary, the charges against Amante in the instant case were dropped. Amante said that on the night of this burglary she was an addict and under the influence of methamphetamine.
Amante also testified on cross-examination that, within the two weeks before trial, she told defense investigator Donald Criswell the following: On October 4, 2007, she called appellant to take her to a fast food restaurant to get something to eat, appellant picked her up in the Blazer, and Amante, appellant, and Rhoades drove to the restaurant where they ate a meal. After leaving the restaurant, she and Rhoades asked appellant to stop because Amante and Rhoades intended to break into some cars. When they asked appellant to stop, appellant did not know of their intention. Appellant waited in the Blazer while she and Rhoades got out, and Amante acted as a lookout while Rhoades broke into a car and took something from it. She opened a car and took a black backpack from it. After she and Rhoades got back in the Blazer with appellant, they did not tell appellant that they had burglarized cars. When the police began to follow them, she and Rhoades told appellant that they had burglarized the cars. Appellant then began to panic and jumped out of the Blazer while it was still running.
Amante also testified on cross-examination that while in the hallway waiting to be called to testify, she had a conversation with Sergeant Navarro. She said that for the first time, she told Navarro that appellant was involved in the instant burglaries. What she told Navarro was essentially the same as what she testified to on direct examination.
On redirect examination, Amante said when she made the false statements to Criswell she was "just trying to help [her] friend [appellant] out." However, she said her in-court statements were true. She also said she consulted her counsel before talking with Navarro; Navarro neither threatened nor pressured her prior to her statement.
Bernadette Marrufo, appellant's aunt, testified she loaned the Blazer to appellant on October 4, 2007, because he was having financial problems and needed it to get to work.
Amante stated that before testifying for the prosecution, she was arrested for leaving the courthouse without telling anyone. The court told her that if she did not come back to court it would be a violation of her probation. She was then granted immunity so that she could testify without getting in trouble on her previous charges.
Criswell testified that when he interviewed Amante on October 4, 2007, she told him that prior to seeing appellant, she and Rhoades were at her home discussing committing a burglary.
Rhoades testified that on the morning of October 4, 2007, Amante called him and said there was a purse in a car she wanted him to get and he responded, "Come get me." Rhoades said he was good at burglarizing cars. Amante and appellant then picked up Rhoades and the three drove to the home where Rhoades and Amante lived. There they used methamphetamine, got food from a fast food restaurant, then parked the Blazer about three or four blocks away from where the car containing the purse was located. Appellant showed Rhoades the car, but was not there when Rhoades broke into it. Rhoades took the purse and met up with appellant at the Blazer. Appellant drove off with Rhoades and Amante in the back seat. As the police were trying to stop the Blazer, appellant said he "couldn't get caught up," and jumped out. Rhoades said the CD's in the Blazer belonged to him.
Rhoades testified he pled guilty to the instant burglary and another burglary involving Amante. The first time he talked to Criswell, Rhoades said he was solely responsible for the October 4 burglary and appellant had no knowledge of it. After Rhoades was subpoenaed by the defense to testify, he learned that Amante had told the truth during her testimony, and he decided to tell the truth about what happened. Rhoades denied telling Criswell he was going to testify falsely at trial in order to get appellant convicted.
Criswell then testified that the first time he talked with Rhoades, Rhoades made the statements Rhoades testified he made to him. When Criswell spoke to Rhoades the second time and told him he needed to come back to court pursuant to the subpoena and court order, Rhoades said he was going to come to court and lie in order to "get even" with Criswell and defense counsel. Criswell understood the lie to be that Rhoades would say he and appellant planned and committed the burglaries.
I. There Was No Brady Error
Appellant contends the court erroneously denied his motions for a continuance and a mistrial based on the prosecution's failure to disclose and produce the taser log from Hepp's taser until after the trial had concluded, in violation of Brady, supra, 373 U.S. 83. He argues the error violated his rights to due process and requires reversal of his conviction of resisting an officer (§ 69) (count 2), and misdemeanor assault (§ 240) (count 1).
On September 3, 2008, the defense issued a subpoena duces tecum to Santa Rosa Police Sergeant Soares seeking, in relevant part, the taser used by Hepp on October 4, 2007, and the "taser log[*fn4 ] relating to [Hepp's] use of his taser on October 4, 2007." On September 12, when the matter was called for trial, the court and counsel discussed the defense's subpoenas. Defense counsel noted that nine police officers had been subpoenaed to testify. He also stated he was not sure whether to subpoena the items requested from Hepp or Soares. Thereafter, the following colloquy occurred:
"THE COURT: How about the taser log? What is that? Is that a document?
"[SOARES]: I guess.
"[DEFENSE COUNSEL]: It's my understanding--I've talked to a couple people that know about tasers--that whenever a taser is fired, in this case it was fired multiple times, . . . there's something called a taser log that is kept that I don't know if it is attached to the taser or how it works, but it keeps track of the date and how many times it was fired and that's what I'm seeking, and I doubt that . . . it's something that . . . Hepp has on his person all the time.
"THE COURT: The stuff he has personally, I assume he can bring with him when he shows up to testify."
Subsequently, Soares informed defense counsel that the Santa Rose Police Department (department) does not keep taser logs.
Thereafter, during a discussion of proposed experts, defense counsel proposed to have his expert, Ron Martinelli, testify that the taser Hepp used creates a log kept by the police department computer. Defense counsel argued that if Soares testified that such a log is not kept, the defense could argue that it should have been kept. Later, defense counsel argued that if such a log had been kept, the exact number of times Hepp's taser was fired and when the probe tase was fired, would be known. Defense counsel argued this was relevant to the "timing of the entire event and when the chase started."
At trial, Soares testified he was the department's training sergeant. He explained that neither of the two types of tasers used by the department have a USB port. He described a taser log as information downloaded to a computer from within the taser itself that can be printed out. Such information includes the time and date the taser was actually fired. The time and date information is not transmitted to a satellite, but to an internal mechanism similar to a computer chip. Soares said the information does not differentiate between whether the taser's contact tase or probe tase was fired. He explained that the information stored internally within the taser is never deleted or cleared. Soares said the department did not download the information from its tasers because there were no mandates or requirements to do so.
After the court instructed the jury on the law, but prior to closing arguments, the court permitted the prosecution to provide rebuttal testimony by Soares. Soares testified that the department's written general order states, " 'The training sergeant will ensure that the record of use is downloaded from each advanced taser and a printed copy of the information is retained.' " He explained that despite this order, created in 2001, the department was not printing out records of taser use because now the department has about 127 tasers as opposed to the 12 tasers they previously had. He said the department determined that downloading taser information was not beneficial or necessary, but the information was always available, "if there was . . . a call or an order to produce that." On cross-examination, Soares conceded that the general order was the current departmental policy. Soares said he had never been asked to access the memory of the taser used in this case and had not downloaded its firing information. However, he said that had he been asked or subpoenaed to do so, he could have done it. He said the information would show the date, time, and duration of firing, the taser temperature and battery life, and the number of times it was used. Soares said the defense had subpoenaed the taser log and Soares had responded that the department did not keep that information. Soares said it would take about 15 minutes to extract the information from the taser. Soares said defense counsel did not make clear that counsel was trying to find out the number of times the taser was used on October 4, 2007.
During the defense closing argument, defense counsel argued:
"At some point, . . . Hepp tased [appellant] with a probe tase. They got to the fence . . . . [Appellant] tried to get over that fence. [H]epp continued to tase him repeatedly in a contact mode.
"[Appellant] fell to the ground. He went limp. [H]epp beat [appellant], causing injuries. The other officers arrived. [Appellant] was taken into custody. [¶] . . . [¶]
"Now, as a starting point, let's take . . . Soares this morning. [S]oares was subpoenaed to provide the taser log.
"Why is it that we're trying to get the taser log and what is the taser log?
"The taser log . . . is a record of when the taser is used, the exact time that the taser was used. If we had the taser log and we could find out the exact times the . . . taser is used, we could determine whether . . . Hepp's version of what occurred, . . . is correct, or whether what . . . Adamson said is correct. Because we have the CAD [(event chronology)]. We have the times. We have a minute and 59 seconds between the first call, when . . . Hepp said that he was engaged in a foot pursuit . . . [¶] . . . [¶] . . . to the time that . . . Hepp radioed in 'on the ground,' which was when he says that . . . he was on [appellant's] back and that [appellant] had gone limp and had ceased to struggle, and then eventually the other officers arrived, . . . we would know what happened in that one minute and 59 seconds, if we had that log."
Defense counsel also argued that Soares knew that in subpoenaing the taser log defense counsel was seeking the record of the use of the taser, but Soares did not produce it. "He stonewalled. He got up here, and it's very close to lying" because the taser log "would show several different contact tases" and Hepp was "trying to cover up the taser use" by saying he used it only one time. Defense counsel also argued that for the prosecution to prove its case beyond a reasonable doubt, it would be important to have the taser log to know when and where the taser hits took place. The defense theory was that there was not a long struggle between Hepp and appellant. Instead, when appellant tried to climb the fence, he was pulled down, Hepp tased him, threatened to shoot him and then contact tased him. Defense counsel argued that Hepp panicked, overreacted and used excessive force against appellant.
In rebuttal argument, the prosecutor argued: "Sorry. The defense attorney had the right to subpoena [the taser logs]. He didn't subpoena them correctly. And so, you know, if he wanted them, he could have gotten them. He could have brought them in. But he didn't. And so now he wants to turn that into something that the agency is trying to cover something up or some conspiracy is going on here. [¶] It's just . . . not the case. The reality is the reason they don't download those and print them out is because paper's expensive, you know. They don't . . . download every use from 125 tasers because it's just impractical. They are rewriting their protocols to conform to that. And they have . . . the information there. If somebody wanted to download the information and subpoena that information properly, they would do it and they would bring them to the defense in court." The prosecutor also argued, "[Hepp] testified that [appellant] was screaming. He . . . tased him repeatedly. If they'd had the taser records, what? What would they show? They'd show that he repeatedly pressed the whole trigger. He was trying to get [appellant] to actually put his hands behind his back so he could take him into custody and let go of his hand. He did try to tase him repeatedly. [Appellant] was screaming. Did that mean he was stopping resisting. No."
During jury deliberations, defense counsel memorialized his prior unsuccessful request that closing arguments be postponed so that Soares could take 10 or 15 minutes to download the data from Hepp's taser. The court had denied the request because the taser was not available in the courtroom. Defense counsel then made a motion for mistrial based on Soares's late disclosure that the taser log information existed and was readily available, despite the fact that it was never disclosed in response to the subpoena. The prosecutor responded: "[M]y understanding, from what I've been observing from [Soares], is that he . . . believed that the subpoena was asking for a log of the taser use. . . . [H]e was questioned specifically about the policy of [the department] to produce written logs. So I think there's two issues here: Is there information on the tasers? And is there a written log, in compliance with what the protocol was? [¶] And counsel had the opportunity to cross-examine him: Why don't they do written logs in compliance with their own protocol? And he . . . had to get up there and explain why they don't do that. [¶] . . . Defense wanted the written logs, and [Soares] told them we don't have written logs. . . . [¶] . . . [S]oares was under the impression that the subpoena was asking him to produce written logs. . . . Soares was not deliberately trying to avoid the court process."
In denying the mistrial motion the court stated: "It's been my understanding in this proceeding that reference was to a log. You are asking for a log. No log was kept by the department. I think everyone knew throughout this proceeding that the tasers had the ability to report the information. [¶] . . . I'm not aware of any request that the information be downloaded. The taser was here in the courtroom." Defense counsel again requested that Soares download the taser information. The court denied the request since the trial was in the deliberations phase.
Thereafter, the court granted defense counsel's request and ordered the Santa Rosa Police Department to preserve the computer chip inside the taser Hepp used on October 4, 2007, and ordered Soares to download and print the data from Hepp's taser.
Subsequently, appellant filed a motion for new trial arguing in part that the prosecution violated Brady by failing to disclose the taser log. Attached to the new trial motion was the downloaded information from Hepp's taser showing that the taser was fired once at 5:13 a.m. on October 4, 2007.
In denying the new trial motion, the court stated in part: "[O]n the issue of the alleged Brady evidence, the failure to produce the taser log, I do find that there was no misconduct on behalf of the prosecution and that . . . the log which is contained in the electronic chip inside the taser was inadvertently withheld, . . . meeting that prong of the Brady test. [¶] I find that the log itself was of marginal relevance and of marginal benefit to [appellant], in that the log indicated the taser had been fired at a time other than the time that these events occurred and, in fact, was inconsistent with the clear evidence that [appellant] was tased effectively at the time of his physical altercation with . . . Hepp, and furthermore, the evidence that the prongs had been fired originally at [appellant], which would have indicated another firing of the taser. [¶] As to prejudice to [appellant], I find that there is no prejudice for failure to produce this log, in that there's no reasonable probability of a different outcome. The overwhelming evidence on the [section] 69 charge was that [appellant] did resist violently to . . Hepp's requests for him to stop and surrender himself."
"In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 917 (Hoyos).) "The duty encompasses impeachment evidence as well as exculpatory evidence." (Ibid.) ". . . 'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) "Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt or innocence.' [Citations.]" (Ibid.) To establish materiality a defendant " 'must show a "reasonable probability of a different result" ' " had the prosecution disclosed the evidence. (Ibid.) " 'A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Hoyos, at p. 918.)
We apply a de novo standard of review to the issue of whether appellant established the elements of a Brady claim (Salazar, supra, 35 Cal.4th at p. 1042), and conclude the claim was properly denied since the taser log information was not material.
In closing argument the defense argued that the taser log information would show appellant was first probe tased by Hepp in front of Adamson's house and thereafter, continuously contact tased by Hepp after appellant tried to get over the fence. The thrust of the defense argument was Hepp was trying to cover up his taser use, no lengthy struggle between him and appellant occurred and instead, Hepp panicked, overreacted and used excessive force against appellant.
However, the downloaded information from Hepp's taser shows the taser was fired once at 5:13 a.m. on October 4, 2007, approximately eight minutes prior to the first entry on the department's event chronology. Since there was no evidence the internal taser mechanism was synchronized to the same time as the department's computer, the taser information did not reveal any information about what happened in the one minute 59 second period*fn5 during which the struggle between appellant and Hepp occurred. Thus, it could not be considered as impeaching Hepp's testimony. In addition, the taser information revealed that Hepp's taser was fired one time and did not establish whether the firing was a probe or contact firing. Thus, it did not aid the defense's theory that Hepp used excessive force in continuously tasing appellant. Most importantly, the downloaded taser information did not undermine the evidence that prior to Hepp's using his taser against appellant, appellant ignored his commands to stop and repeatedly swung and punched at him as he was trying to take appellant into custody. Appellant's arguments about what defense counsel might have done differently had the taser information been timely disclosed are rejected as speculative, and do not affect the materiality of the taser information. The Brady error claim was properly rejected.
II. No Prosecutorial Misconduct Is Demonstrated
Next, appellant contends the prosecutor committed misconduct during his rebuttal argument by misstating the law and facts and relying on information not in evidence. He concedes defense counsel did not object to the misconduct, but argues that the claim is not forfeited on appeal because an objection and request for admonition at trial would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 820.) Alternatively, he argues that defense counsel's failure to object to the prosecutorial misconduct constituted ineffective assistance of counsel.
A prosecutor has wide latitude during argument. So long as his argument amounts to fair comment on the evidence, it can include reasonable inferences, or deductions to be drawn therefrom. During summation the prosecutor may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. (People v. Hill, supra, 17 Cal.4th at p. 819.) "Although counsel have 'broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]' [Citation.]" (People v. Mendoza (2007) 42 Cal.4th 686, 702.)
Appellant argues the prosecutor deliberately misled the jury and ignored his disclosure obligations under "Evidence (sic) [Penal] Code section 1054.1" and Brady by stating: "[I]f [defense counsel] wanted [the taser logs], he could have gotten them. He could have brought them in. But he didn't." Appellant argues that, under Brady, the prosecutor was responsible for disclosing favorable and material evidence to the defense and, under Penal Code section 1054.1, had a continuing obligation to disclose exculpatory evidence to the defense. Thus, he argues the prosecutor deceived the jury by arguing he had no disclosure duty and blaming defense counsel for the nondisclosure. We conclude no prosecutorial misconduct is demonstrated. First, as we noted previously, the taser log information was not material and therefore no Brady error was demonstrated. Second, the record before us demonstrates that what was meant by "taser log," as referred to in the defense subpoena, was not clear. Soares could reasonably have understood the defense subpoena to be a request for an existing written log from Hepp's taser, rather than a request that the department download any information from Hepp's taser's internal memory. Third, the prosecutor did not comment on the taser log during his closing argument. Instead, his rebuttal argument statements regarding the taser log were appropriately made in response to defense counsel's closing argument attack on Soares and the prosecution for failing to turn over the taser log.
Appellant also argues the prosecutor alluded to facts not in evidence by stating that the reason the department does not download and print out the taser log information "is because paper's expensive, you know" and "it's just impractical," and by speculating that if the defense had the taser log, it would show that Hepp "repeatedly pressed the whole trigger." To the extent these statements alluded to facts outside the record not within common knowledge, the error is harmless. The trial court instructed the jury that nothing counsel said during opening or closing argument was evidence (CALCRIM No. 104), and if anything counsel said conflicted with the trial court's instructions on the law, the jury must follow the court's instructions (CALCRIM No. 200). We are entitled to presume that the jurors understood and followed the court's instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
III. The Court's Grant of Immunity Was Not Erroneous
Next, appellant contends the court acted in excess of its jurisdiction by sua sponte granting immunity to Amante. He also contends the court's grant of immunity was "selective and incomplete," and was improperly coercive because it "obligated Amante to testify in strict accordance with her prior statement to law enforcement instead of simply obligating [her] to testify truthfully at trial." He argues that as a result of the error, this court should reverse his convictions for the count 4 auto burglary and the count 5 possession of stolen property.
On the date Amante was scheduled to testify, the prosecutor suggested that her prior counsel be present. The prosecutor explained that Amante's statement to Navarro that morning, to Hepp on the day of the incident, and to Criswell two weeks before testifying at trial were inconsistent. The court noted that Amante had already been convicted as to her involvement in the incident.
Thereafter, outside the presence of the jury, the court conducted an Evidence Code section 402 hearing regarding Amante's testimony. Amante's counsel stated that Amante was on felony probation and, given her conflicting statements, would have to admit she lied to a police officer or she would have to lie on the witness stand. The prosecutor stated he would be willing to give her use immunity for her testimony if it contradicted the statement she gave to Hepp on the day of the incident. The court clarified that if the prosecution thought Amante was lying on the witness stand, she could be prosecuted for contempt of court or perjury, but her prior inconsistent statements could not be used against her. After defense counsel expressed his understanding of the proposed immunity, the prosecutor said he was withdrawing his offer of immunity to Amante. Amante then said she was "fine" with testifying.
Outside the presence of the jury, Amante testified that she had spoken to Criswell within the last two weeks. On advice of her counsel, she refused to testify to what she told Criswell or to anything regarding the October 4, 2007 incident. Defense counsel then requested that either the prosecution or the court grant Amante immunity for her prior statements to Hepp, Navarro, and Criswell. The court then stated: "[W]hat I will do is extend immunity as to any inconsistencies between what [Amante] says on the witness stand and what she said to [Hepp]. [¶] . . . [¶] . . . It would be transactional immunity." Defense counsel stated if Amante testified consistently with her prior statement to Criswell, she would have no immunity for having lied to Navarro. The court responded, "That's up to her. She can decide whether she wants to take the Fifth or testify. . . . I'm granting use immunity as to this testimony, vis-A-vis what she told [Hepp.]" Defense counsel argued that a selective grant of immunity solely as to Amante's prior statement to Hepp, and not Navarro, put her in the position that if she testified consistently to what she told Criswell, she could be prosecuted for lying to Navarro, constituting testimony "under pressure." The court responded that Amante could exercise her Fifth Amendment privilege if she felt there was a problem. Counsel agreed that Amante would have a privilege not to testify regarding her statement to Navarro if her other testimony was contrary to what she told Navarro. Amante's counsel said he would make that clear to her. Thereafter, Amante said she understood and agreed to testify. Because defense counsel declined to call Amante as a defense witness out of order, she was called first as a prosecution witness, and later by the defense.
As we summarized above, Amante testified on cross-examination that the morning of the incident, she spoke separately to Hepp and two other officers. She testified that when Hepp asked her what had happened she probably said, "Nothing. I just got back from Jack-in-the-Box, and then we were stopped." She also testified she might have told Hepp, " 'Nothing happened. I don't break into any cars or houses,' " and she probably told Hepp, " 'I don't know why [appellant] ran.' " She also testified consistently with her statements to Navarro and said she gave a false statement to Criswell to help her friend, appellant.
Following Amante's testimony, defense counsel moved for a mistrial based on "the court's selective granting of immunity to [Amante]." After a lengthy discussion, the court stated the following in denying the mistrial motion: "If . . . I improperly granted transactional immunity, that might be something the district attorney could complain about or seek to reverse, but I do not think [appellant is] in a position to complain about my grant of immunity just as to that. . . . [¶] . . . [¶] . . . You're making an argument that my grant of immunity only as to [Hepp] somehow pressured [Amante] into telling . . . a particular version that would benefit the prosecution. I do not believe that's correct. I informed her specifically that she had a right to . . . assert the Fifth Amendment if she did not want to testify, if she believed that she'd be placing herself in jeopardy because of any other statements made to [Navarro]. [¶] I did listen to her testimony. I believe that she did testify voluntarily and, for all appearances, truthfully; that she did not feel pressured. That was not my impression listening to her testimony and also watching her demeanor. On that basis, I am denying the motion for mistrial."
After defense counsel asserted the court did not explain its reason for granting immunity for one statement and not the other, the court stated: "The reason I made that statement was that seemed to be the impediment to her testimony, that she might be testifying inconsistently with a prior statement given. [¶] . . . [¶] . . . It's simply her impediment to testifying at all. She took the Fifth Amendment because of that inconsistency. I granted the immunity and then said, if you still feel there's a problem, you can still assert the Fifth Amendment. She didn't feel there was a problem anymore. I tried to grant the immunity to address the issue that she raised was the problem and the impediment to her testimony."
Subsequently, in moving for new trial, appellant argued that because of the grant of immunity, Amante was improperly coerced or intimidated to conform her testimony to her statement to Navarro. In denying the motion the court stated: "As to the immunity, I'm also finding that there's no basis for a new trial in that the witness was granted immunity and did decide to testify. If she had felt any pressure as to her position, she could have simply refused to testify, as she originally did and then was advised by her attorney. But once I granted immunity, she felt comfortable testifying. It was not the [P]eople that requested immunity originally; it was [defense counsel] who had requested immunity, to attempt to get her to testify, and I was trying to accommodate the defense in that regard."
Appellant first argues that, regardless of whether the court's grant of immunity was use immunity or transactional immunity*fn6 , its sua sponte grant of immunity was in excess of its jurisdiction.
"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." (People v. Williams (2008) 43 Cal.4th 584, 622 (Williams).) As to a court's authority to grant immunity, our Supreme Court has stated, "[W]e 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 had made a showing that a defense witness should be afforded immunity in order to provide clearly exculpatory testimony. [Citation.]" (Id. at pp. 622-623.)
Appellant's first claim is forfeited because it was not raised below. (See Williams, supra, 43 Cal.4th at pp. 624-625 [immunity claim not raised below is forfeited on appeal].) In the trial court, appellant did not object to the court's sua sponte grant of immunity as being in excess of the court's jurisdiction. Instead, he objected solely on the ground that the court was granting immunity for Amante's statements to Hepp and not for her statements to Navarro and Criswell. In addition, defense counsel expressly stated, "I also think the court should consider granting judicial immunity for those statements so we can get to the truth here under these circumstances." Appellant cannot now complain that the court's grant of immunity was an excess of its jurisdiction.
Appellant's second claim is that his rights under the Fifth, Sixth, and Fourteenth Amendments were violated because Amante's testimony was improperly coercive because "it obligated Amante to testify in strict accordance with her prior statement to law enforcement instead of simply obligating Amante to testify truthfully at trial."
"[I]f the immunity agreement places the witness under a strong compulsion to testify in a particular fashion, the testimony is tainted by the witness's self-interest, and thus inadmissible. [Citation.] Such a 'strong compulsion' may be created by a condition ' "that the witness not materially or substantially change her testimony from her [prior] statement already given to . . . law enforcement officers." ' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 455.) However, immunity may properly be granted to a witness on condition that he or she testify truthfully to the facts involved. In Boyer, the grant of immunity was conditioned on the witness's truthful testimony, which the witness represented would be in accord with her prior statements. The high court concluded that the immunity agreement merely reflected the parties' mutual understanding that the prior statements were truthful, not that the witness must testify consistently with her prior statements regardless of their truth. (Id. at p. 456.)
Here, appellant argues the court's grant of immunity placed her under a strong compulsion to testify in conformity with her statements to Navarro hours before. He argues the court essentially gave Amante two choices: either testify consistently with her prior statement to Hepp and be protected by the court's partial immunity grant, or invoke her Fifth Amendment rights not to testify if she chose not to testify consistently with her prior statement. Appellant argues this choice was illusory because the partial immunity grant effectively coerced Amante to testify. He asserts that if she chose to testify consistently with her prior exculpatory statements to Criswell and invoke her right not to testify to her statements to Navarro, she would essentially be admitting she lied to Navarro hours earlier.
Respondent rejoins that the record does not demonstrate that the grant of immunity to Amante expressly required her to testify in a particular fashion or to testify consistently with her prior statements to Hepp or Navarro. We agree.
The essence of Amante's statements to Hepp was that no crime was committed. The essence of her statements to Criswell was that the auto burglaries were committed by her and Rhoades and appellant neither participated, nor had prior knowledge of the planned burglaries. The essence of Amante's statements to Navarro was that appellant was involved in the auto burglaries. Amante's statements to Criswell (appellant was not involved) and Navarro (appellant was involved) were in direct conflict.
The effect of the court's grant of immunity solely regarding Amante's statements to Hepp was that any inconsistency between those prior statements and her subsequent testimony could not be used against her. However, regardless of the grant of immunity regarding Amante's statements to Hepp, Amante was still left with the inconsistency between her statements to Criswell and Navarro, and she was free to testify in accordance with either one. Thus, as recognized by the trial court, the grant of immunity regarding Amante's statements to Hepp did not coerce Amante to testify in accordance with her statements to Navarro. Instead, if she chose to testify about the crime, she would contradict either her statement to Criswell or to Navarro; alternatively she could invoke her privilege against self-incrimination and decline to discuss the crime. The record establishes Amante understood that if she lied under oath, she could "get in trouble." Amante chose to testify that her prior statements to Criswell were false and made in an effort to help appellant, and she decided it was "easier" to tell the truth than exercise her Fifth Amendment right not to testify. Further, we reject appellant's summary assertion that, because Amante had been subpoenaed to testify, the court's grant of immunity was coercive. The record before us also belies appellant's speculative assertion that "it was not clear that Amante knew that she could (again) assert her Fifth Amendment privilege before the jury."
V. The Sentence Imposed On the Assault Conviction Violates Section 654
Finally, appellant contends, and respondent concedes, the court violated section 654 in sentencing him to concurrent terms on the misdemeanor assault conviction and resisting an officer conviction.
In his sentencing memorandum, appellant argued section 654*fn7 applied to his convictions for the section 240 misdemeanor assault and the section 69 felony resisting an officer because both acts were related to the single objective to escape from Hepp. At sentencing, with no statement of reasons, the court imposed a consecutive 16-month (one-third the midterm) term, doubled under the three strikes law, on the resisting an officer count and imposed a concurrent six-month term for the misdemeanor assault count.*fn8
Section 654 "bars multiple punishment where the convictions arise out of an indivisible transaction and have a single intent and objective. [Citations.] Whether a defendant did in fact have multiple objectives is generally a question of fact for the trial court, and its decision will be upheld on appeal if supported by substantial evidence. [Citation.]" (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.)
The parties agree that the six-month term on the misdemeanor assault conviction should be stayed because appellant's assaultive conduct toward Hepp occurred entirely within the scope of his attempts to resist arrest. We agree that the concurrent sentences imposed on the assault and resisting an officer counts are not supported by substantial evidence. Consequently, the misdemeanor assault conviction should be stayed pursuant to section 654.
The judgment is modified to reflect a stay, pursuant to section 654, of the sentence imposed on count 1. So modified, the judgment is affirmed. The court is directed to modify the abstract of judgment to reflect the staying of the sentence on count 1. The court is further directed to send a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
We concur. JONES, P.J. BRUINIERS, J.