California Court of Appeals, Second District, Sixth Division
[As Modification on December 9, 2014]
Superior Court County of Los Angeles No. LA068488-01 Martin L. Herscovitz, Judge
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P. J.
A prosecution witness takes the witness stand but refuses to answer any questions. The trial court allows 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 the illusion of testimony. This deprived defendant of a fair trial because he could not exercise his constitutional right of cross-examination. Instructions that cautioned the jury not to regard the prosecutor's questions as evidence did not overcome the extreme prejudice to defendant.
We reverse and remand so that the trial court may explore options that do not run afoul of defendant's constitutional rights.
Tony Murillo appeals a judgment following his conviction of the first degree murder of Luis Velasquez (Pen. Code, §§ 187, subd. (a), 189),  attempted murders of Dylan Valencia and Roberto Villatoro (§§ 664, 187, subd. (a)), and possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury found true allegations that Murillo committed the crimes for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).
FACTUAL AND PROCEDURAL BACKGROUND
Velasquez, Valencia, and Villatoro were members of the North Hollywood Locos ("Locos") criminal street gang. On January 23, 2010, they wrote graffiti in the territory of a rival gang, the North Hollywood Boyz, and then walked down the middle of Califa Street at about 11:00 p.m., in the same rival territory. North Hollywood Boyz is an ally of Clanton 14, a criminal street gang with about 80 members. Murillo is a member of Clanton 14.
Villatoro testified that a man dressed in black approached them and asked, "Where you guys from?" They responded, "Locos." The man said "Clanton" and "opened fire." He killed Velasquez, shot Valencia in the leg, and left a bullet hole in Villatoro's sweater. The man shot Velasquez from about one foot away, according to the autopsy.
No eyewitness identified Murillo at trial. Before trial, Valencia identified Murillo as the shooter in a photographic lineup. But at trial, he refused to testify. Valencia was represented by counsel and did not invoke the Fifth Amendment privilege against self-incrimination. The trial court allowed the prosecutor to ask Valencia 110 leading questions about his out-of-court statements and to display the photographic lineups on which he had written that Murillo was the shooter.
When called as a witness, Valencia stated, "I've got nothing to say." Defense counsel asked that the prosecutor examine Valencia outside the jury's presence. The trial court denied the request because "[t]here's no claim of privilege here."
In response to each of the prosecutor's questions, Valencia said he had "nothing to say" or did not respond. After 16 questions, defense counsel renewed her request to excuse the jury and objected to the questions on confrontation grounds. The trial court denied the request, and allowed the prosecutor to continue with another 94 questions concerning the details of Valencia's prior statements to detectives.
The prosecutor asked Valencia: "Isn't it true... that you were shown six photographs [in January] and asked whether you could identify anybody in those photographs?; [D]o you recall telling the detectives that it looks like, but you're not sure, [it is] number four [(Murillo)]?; [D]o you recall circling number four [(Murillo)] and putting your initials, the date, and the time on that document?; [D]o you recall writing a statement that says, 'Number four [(Murillo)] looks like him, but not completely sure. Kind of the same face structure'?; [O]n page one of this exhibit, do you recall signing it under signature of witness in front of the detectives?"
Over defense objection, the trial court allowed the prosecutor to display a photographic lineup dated March 5 on which Valencia circled Murillo's photograph (No. 4) and wrote, "I was walking down Califa St. and number 4 came up to me and my friends and said where you vatos from and we said the lokos and he began shooting and when he was done he said Clanton.... I am not a snitch and never will be that's why I didn't say anything." The prosecutor asked Valencia, "Isn't it true... that's your writing and you ...