THE PEOPLE v. DAMEN RABB

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DAMEN RABB, Defendant and Appellant.

B206611

Decided: February 10, 2010

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Damen Rabb also known as Damon Rabb (appellant) of two counts of carjacking (counts 1 & 2;  Pen.Code, § 215, subd. (a)) 1 and two counts of second degree robbery (counts 3 & 4;  § 211).   The jury found that appellant personally used a firearm during the offenses, that a principal was armed with a firearm during the offenses, and that appellant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members.

In a separate proceeding, the trial court found that appellant had suffered two prior felony convictions that qualified as strikes under the Three Strikes Law (§§ 1170.12, subds.(a)-(d);  667, subds. (b)-(i)) and as serious felonies under section 667, subdivision (a)(1), and that appellant had served a prior prison term (§ 667.5, subd. (b)).  On each count, the trial court sentenced appellant to 25 years to life for the substantive offense plus 10 years for the personal firearm use enhancement.   The trial court ordered counts 1 and 2 to run consecutively, ordered count 3 to run concurrently with counts 1 and 2, and stayed count 4 pursuant to section 654.   Additionally, the trial court imposed a five-year term for the serious felony enhancement and struck sentences on the remaining enhancements.

At the time of appellant's trial, the victims of the carjacking and robbery were in custody on unrelated charges.   They invoked their Fifth Amendment right against self-incrimination and refused to testify at appellant's trial.   On appeal, appellant contends the trial court committed reversible error by:  (1) admitting statements made by the victims to a police officer shortly after the charged crimes took place as “spontaneous statements” under Evidence Code section 1240;  (2) not determining whether the victims had a valid Fifth Amendment right before allowing the victims to avoid testifying at trial;  (3) denying appellant's request for additional funds to secure expert testimony on psychological factors affecting eyewitness identifications;  and (4) not staying punishment on count 3 pursuant to section 654.   We affirm.

FACTUAL BACKGROUND

On September 19, 2005, at approximately 1:30 a.m., Los Angeles Police Department (LAPD) Officer David Ashley received a radio call broadcast that possible crimes had occurred at a gas station on the corner of Figueroa Street and Vernon Avenue.   Within five minutes of receiving the radio call, Officer Ashley arrived at the location and was flagged down by Maurice Farmer (Farmer) and DeShawn Chappell (Chappell).   Farmer, who appeared nervous and upset, told Officer Ashley that a man had pointed a gun at him, asked him where he was from, and then took his car.   Farmer described the assailant as a Black male wearing a light blue T-shirt, medium build, five feet six inches tall, with light skin, braids in his hair, a tattoo of a teardrop under his right eye, and a tattoo of a hand and finger on his forearm.   Farmer also told Officer Ashley that a green Toyota Camry was involved in the incident.   Officer Ashley immediately broadcasted the information he received from Farmer to LAPD units and stayed at the gas station with Farmer and Chappell.

Around the same time, at approximately 1:30 a.m., LAPD Sergeant Frank Banuelos was on routine patrol.   He saw a green Camry speeding with its lights off.   After the green Camry failed to stop at a red light, Sergeant Banuelos initiated a traffic stop.   The stop occurred on West 45th Street, approximately one mile away from the gas station where Farmer's car had been taken.   Sergeant Banuelos parked approximately 30 feet away from the stopped Camry and illuminated the area with his police vehicle's overhead lights and spotlight.

The driver and a passenger exited the green Camry.   The passenger stared at Sergeant Banuelos for two to four seconds and then ran away.   Before the passenger fled, Sergeant Banuelos had the opportunity to observe that the passenger was a heavyset Black male wearing a light blue long sleeved shirt, and had light skin, braided hair, and a tattoo of a teardrop on his right cheek.   Sergeant Banuelos radioed for assistance in setting up a perimeter and then detained the driver, who was later identified as Kendra Brown (Brown).   As the sergeant was placing Brown into custody, Brown spontaneously asked him whether her detention was related to what happened “at the gas station.”   Sergeant Banuelos asked Brown what gas station she was referring to, and she identified the gas station on Figueroa Street and Vernon Avenue.

Sergeant Banuelos immediately called the LAPD communications division to inquire about whether there had been a request for service at a gas station on Figueroa Street and Vernon Avenue and was connected through to Officer Ashley.   Officer Ashley explained that he was at that location investigating a carjacking and that the suspect vehicle was a green Camry.   Sergeant Banuelos left Brown with another unit at the 45th Street location and drove to the gas station.   He arrived at the gas station approximately 15 minutes after the incident had occurred.

According to Sergeant Banuelos, both Farmer and Chappell appeared under “stress” from the incident.   They were pacing back and forth and appeared “excited ․ mad, [and] physically shaken.”   Sergeant Banuelos testified that he had difficulty calming them down in order to speak with them.   Sergeant Banuelos spoke with Farmer first, who told Sergeant Banuelos that he had been robbed of his vehicle and some personal property at gunpoint.   Sergeant Banuelos testified that Farmer told him the following:  Farmer was pumping gas into his Chevrolet Equinox when a green Camry, driven by a woman, approached him.   A man (the assailant) exited the Camry, pointed a gun at Farmer, and asked Farmer where he was from.   Meanwhile, another man carrying a gun, exited the Camry from the rear right passenger door and acted as a lookout.   Farmer told the assailant that he was not a gang member.   The assailant pointed the gun at Farmer, said to Farmer “It's that 40's life,” and then took $15 from Farmer's person.   After the assailant took the $15 from Farmer, the assailant instructed Chappell to get out of the Equinox.   The assailant asked Chappell whether Chappell had any property and Chappell responded in the negative.

Chappell told Sergeant Banuelos that the assailant had pointed a gun at him and had instructed him to get out of the Equinox.   Chappell complied and the assailant boarded the Equinox and drove off.   The lookout reentered the green Camry and that car drove off as well.   Chappell stated that during the incident, he was afraid that he would die.

According to Sergeant Banuelos, both Farmer and Chappell described the assailant as a Black male with a blue shirt, braids, a tattoo on his face, and a tattoo on his forearm of a hand making a gang sign.

Back at the 45th Street location, LAPD Officer Eddie Martinez was standing by with Brown in custody.   A man, later identified as Earl Parron (Parron), walked up to the scene and asked the officers “what was going on.”   Parron, who is Black, had broken leaves on his sweater.   Officer Martinez and his partner decided to detain Parron because Sergeant Banuelos had told them that a Black male had fled from the scene earlier and Parron appeared as though he might have been running or possibly hiding based on the broken leaves on his sweater.   When Sergeant Banuelos returned to the 45th Street location, he indicated that Parron was not the man that he saw fleeing from him earlier when he pulled over the green Camry.

Around the same time, Officer Ashley transported Farmer and Chappell to the 45th Street location for a field showup.   According to Officer Ashley, as soon as Farmer and Chappell approached the location, they saw the green Camry and yelled:  “That's the car, that's the car.”   Farmer and Chappell also told Officer Ashley that they recognized Brown as the driver of the green Camry and Parron as the lookout.   They further told Officer Ashley that Parron and the assailant were carrying blue steel revolvers.   Officers searched the green Camry and found three loaded blue steel revolvers in the trunk.

That night, Sergeant Banuelos learned that the green Camry was registered to a person named Tequila Richmond (Richmond).   He sent two officers to Richmond's home address.   The officers asked her about the whereabouts of her vehicle and she told them that the green Camry belonged to her and that she had loaned it to “Damen Rabb,” her boyfriend.   Sergeant Richmond asked station officers to run a check on that name and they sent him a booking photograph of appellant.   At trial, Sergeant Banuelos testified that the person in the booking photograph, i.e., appellant, was the person that fled from him on the night of the incident.2

On September 20, 2005, the next day, officers located the Equinox in an area where Brown had told them they would find it.

Also, on that day, LAPD Detective Theodore Williams interviewed Parron, who was in custody, after Parron had waived his Miranda 3 rights.   According to Detective Williams, Parron told him the following:  On the day of the incident, Parron, Brown, and appellant were at the gas station on Figueroa Street and Vernon Avenue when they saw Farmer and Chappell.   Appellant stated that he wanted to talk with Farmer and Chappell, and instructed Parron to act as his “backup” in case problems arose.   Both appellant and Parron were carrying handguns at the time.   Parron saw appellant approach Farmer and Chappell, board the Equinox, and drive off.   Detective Williams prepared a six-pack photographic display that contained appellant's photograph and presented it to Parron.   Parron circled appellant's photograph and identified appellant as the individual who took Farmer's Equinox at gunpoint.   During the interview with Detective Williams, Parron appeared nervous and scared.   Parron subsequently entered a plea of no contest to one count of carjacking.   Appellant was arrested sometime after the incident in question.

At the time of trial, Farmer and Chappell were in custody on murder charges for unrelated incidents.   Outside the presence of the jury, both individuals invoked their Fifth Amendment right against self-incrimination and the trial court ruled that they would not be required to take the witness stand at appellant's trial.   Brown, who was in custody pursuant to a plea agreement, also invoked her Fifth Amendment right against self-incrimination outside the presence of the jury and refused to testify.

At trial, Parron testified that he did not recall who he was with on September 19, 2005, nor did he recall being at the gas station on Figueroa Street and Vernon Avenue on that date.   Parron testified that he was not acquainted with appellant and did not recognize appellant.   Parron denied ever speaking with Detective Williams and denied identifying appellant in a photographic display.   Parron admitted to being a member of the Rolling 40's Neighborhood Crips gang.

LAPD Officer Brian Richardson, the prosecution's gang expert, testified that the Rolling 40's Neighborhood Crips is a criminal street gang whose primary activities include the commission of various crimes that are listed in section 186.22, subdivision (e).   According to Officer Richardson, appellant was a member of the Rolling 40's Neighborhood Crips on September 19, 2005, and his acts of carjacking and robbery benefitted that gang because the stolen car would have assisted in other gang shootings and homicides, and the stolen money would have furthered the purchase of weapons and drugs.   The prosecution showed Officer Richardson photographs of tattoos on appellant's face, torso, and arms.   Officer Richardson confirmed that appellant had a tattoo of a teardrop underneath his left eye and a tattoo of a hand making a gang sign on his arm.

During the prosecution's case, the trial court read the following instructions to the jury:  “The court is taking judicial notice and hereby advising the jury that Maurice Farmer was called as a witness in this case outside the presence of the jury, and that Maurice Farmer, with the advice of his counsel, refused to testify, basing his refusal on his constitutional privilege against self-incrimination.

“The court is taking judicial notice of and is hereby advising the jury that DeShawn Chappell was called as a witness in this case outside the presence of the jury, and that DeShawn Chappell, with the advice of counsel, refused to testify, basing his refusal on self-incrimination.” 4

On behalf of the defense, private investigator Daniel Mendoza (Mendoza) testified that in May of 2007, he interviewed Parron while Parron was in custody.   During the interview, Parron told Mendoza the following:  On the night of September 19, 2005, Parron consumed two grams of marijuana, two ecstasy pills, and a bottle of vodka at a party.   After Parron was detained, the police coerced him into making certain incriminating statements.   Parron denied knowing appellant and stated that he did not recognize appellant's photograph.

DISCUSSION

I. Spontaneous Statements

A. Appellant's Argument

Appellant concedes that the statements made by Farmer and Chappell to Officer Ashley five minutes after the incident were admissible as “spontaneous statements” under Evidence Code section 1240.   He contends, however, that the statements Farmer and Chappell made to Sergeant Banuelos were not admissible as spontaneous statements because the declarants made the statements 15 minutes after the incident when there was no longer an ongoing emergency.

B. Relevant Authority

“A statement may be admitted, though hearsay, if it describes an act witnessed by the declarant and ‘[w]as made spontaneously while the declarant was under the stress of excitement caused by’ witnessing the event.  (Evid.Code, § 1240.)”  (People v. Gutierrez (2009) 45 Cal.4th 789, 809 (Gutierrez ).)   “ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting;  (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance;  and (3) the utterance must relate to the circumstance of the occurrence preceding it.’  [Citations.]”  (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi ).)

“The word ‘spontaneous' as used in Evidence Code section 1240 means ‘actions undertaken without deliberation or reflection․  [T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief.’  (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)” (Gutierrez, supra, 45 Cal.4th at p. 811.)

“The crucial element in determining whether an out-of-court statement is admissible as a spontaneous statement is the mental state of the speaker.”   (Gutierrez, supra, 45 Cal.4th at p. 811.)  “The nature of the utterance-how long it was made after the startling incident and whether the speaker blurted it out, for example-may be important, but solely as an indicator of the mental state of the declarant.”  (People v. Farmer, supra, 47 Cal.3d at p. 903.)

C. Analysis

When the record is viewed in light of the factors articulated by the Supreme Court in Poggi, we conclude that the statements made by Farmer and Chappell to Sergeant Banuelos 15 minutes after the charged crimes occurred were properly admitted as “spontaneous statements” under Evidence Code section 1240.   The parties dispute whether the trial court admitted the statements in question under Evidence Code section 1240 or some other ground.   However, because we conclude the statements qualify as “spontaneous statements” under Evidence Code section 1240 and were admissible for this reason, the trial court's reasoning for admitting the statements is beside the point at this juncture.   (People v. Geier (2007) 41 Cal.4th 555, 582 [“we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm”].)

First, there was certainly an “occurrence startling enough to produce ․ nervous excitement and render the utterance spontaneous and unreflecting.”   (Poggi, supra, 45 Cal.3d at p. 318.)   Farmer and Chappell were held up at gunpoint and both believed that their lives were at risk.   Second, they made their statements to Sergeant Banuelos just 15 minutes after they had been held up when their “nervous excitement” undoubtedly still dominated their reflective powers.  (Ibid.) Farmer and Chappell appeared under “stress” from the incident, were pacing back and forth, and acted “excited ․ mad, [and] physically shaken.”   According to Sergeant Banuelos, “it was difficult for [him] to actually calm them down and talk to them.”   Third, their statements described what occurred, provided a physical description of the assailant, and related directly to the circumstances that led to their call for police help.   (Poggi, supra, at p. 318 [“ ‘the utterance must relate to the circumstance of the occurrence preceding it’ ”].)

Appellant argues that too much time, i.e., 15 minutes, elapsed between when the incident occurred and when Farmer and Chappell spoke to Sergeant Banuelos to qualify their statements as spontaneous.   As the Supreme Court explained in Gutierrez, however, “[t]he crucial element in determining whether an out-of-court statement is admissible as a spontaneous statement is the mental state of the speaker” and not necessarily the time between the statement and the incident it describes.  (Gutierrez, supra, 45 Cal.4th at p. 811.)   As discussed above, both Farmer and Chappell were still nervous and excited by the time Sergeant Banuelos arrived at the gas station and he had difficulty calming them down before he spoke to them.   In any event, the time that elapsed in this case, 15 minutes, is less than other periods of time that have still resulted in spontaneous statements.  (See, e.g., Poggi, supra, 45 Cal.3d at p. 319 [witness's statements made 30 minutes after attack held spontaneous];  People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1589 [“no more than about 30 minutes had gone by” between the underlying incident and the witness's statement;  court held statement was “spontaneous” and noted that “[m]uch longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception”].)

Appellant also argues that by the time Farmer and Chappell spoke to Banuelos, Brown and Parron were already in custody and thus there was no ongoing emergency.   There is nothing in the record, however, that indicates Farmer and Chappell knew Brown and Parron were in custody at the time they spoke with Sergeant Banuelos.   What matters is the mental state of the declarant, and here Farmer and Chappell were likely under the impression that the individual who threatened their lives, as well as his cohorts, were at large when they spoke to Sergeant Banuelos 15 minutes after the incident had occurred.

In sum, we conclude the trial court properly admitted the statements made by Farmer and Chappell to Sergeant Banuelos as spontaneous statements under Evidence Code section 1240.

II. Crawford 5 Issue

A. Appellant's Argument

Appellant contends that even if the statements made by Farmer and Chappell to Sergeant Banuelos fell within the hearsay exception for spontaneous statements, their admission nonetheless violated his Sixth Amendment rights under the Confrontation Clause.

B. Relevant Authority

In Ohio v. Roberts (1980) 448 U.S. 56, 66, the Supreme Court held that an unavailable witness's hearsay statement could be admitted without violating the Sixth Amendment's Confrontation Clause if the statement bore “adequate ‘indicia of reliability,’ ” such as if it fell “within a firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.”

In Crawford, supra, 541 U.S. at p. 59 the Supreme Court reconsidered its ruling in Ohio v. Roberts and held that if a hearsay statement is testimonial in nature, it is admissible only “where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” the declarant.   The Supreme Court was careful to note that its decision implicated only testimonial hearsay and “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does [Ohio v.] Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.”  (Crawford, supra, at p. 68.)   The Supreme Court declined to spell out a comprehensive definition of “ ‘testimonial’ ” but noted that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial;  and to police interrogations.”  (Ibid.)

In Davis v. Washington (2006) 547 U.S. 813 (Davis ), the Supreme Court explained further what it considered to be nontestimonial and testimonial statements.   It held that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”  (Id. at p. 822.)   On the other hand, “[t]hey are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  (Ibid.)

Building on the United States Supreme Court's decisions in Crawford and Davis, our Supreme Court in People v. Cage (2007) 40 Cal.4th 965 (Cage ) identified several “basic principles” to assist courts in determining whether a particular statement is testimonial.   The court explained that a testimonial statement need not be given under oath, but it must have some “formality and solemnity characteristic of testimony” and “must have been given and taken primarily ․ to establish or prove some past fact for possible use in a criminal trial.”  (Id. at p. 984.)   On the other hand, “statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.”  (Ibid.) “[T]he primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.”  (Ibid.)

C. Analysis

With this background in mind, we turn to the issue presented in this appeal, whether the spontaneous statements made by Farmer and Chappell to Sergeant Banuelos were testimonial in nature.   If they were testimonial, then they were subject to the requirements of Crawford.   If they were not testimonial, then their admissibility was governed by “hearsay law ․ and ․ exempted ․ from Confrontation Clause scrutiny altogether.”  (Crawford, supra, 541 U.S. at p. 68.)

People v. Corella (2004) 122 Cal.App.4th 461 (Corella ) is instructive.   In that case, the victim called 9-1-1 immediately after the defendant had hit her.   Sometime later (the opinion does not specify the time elapse), a police officer responded to the scene.  (Id. at p. 465.)   The victim, who was crying and distraught, told the officer that the defendant had punched her several times on various parts of her body.  (Ibid.) The trial court admitted the victim's statements to the officer as spontaneous statements under Evidence Code section 1240.  (Corella, supra, at p. 464.)   On appeal, defendant argued that the admission of the victim's statements violated his Sixth Amendment right to confrontation as interpreted by Crawford.   (Corella, supra, at p. 465.)   The Court of Appeal rejected the defendant's argument.   It reasoned that even though Crawford included responses to “police interrogation” in its definition of testimonial statements, the “spontaneous statements [made by the victim] describing what had just happened did not become part of a police interrogation merely because Officer Diaz was an officer and obtained information from [her].”  (Corella, supra, at p. 469.)   The court explained that “[p]reliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation’ ” and that “[s]uch an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police ‘interrogation’ as that term is used in Crawford.”   (Ibid.)

Turning to the nature of spontaneous statements generally, the Corella court stated that “it is difficult to identify any circumstances under which [an Evidence Code] section 1240 spontaneous statement would be ‘testimonial’ ” because “statements made without reflection or deliberation are not made in contemplation of their ‘testimonial’ use in a future trial.”   (Corella, supra, 122 Cal.App.4th at p. 469;  see also People v. Brenn (2007) 152 Cal.App.4th 166, 178 [statements made by stabbing victim to responding officer while assailant was still at large were spontaneous statements under Evidence Code section 1240 and nontestimonial because the officer was there to assist the victim and not to prepare for trial, and questioning was informal, brief, and unstructured].)

In People v. Pedroza (2007) 147 Cal.App.4th 784 (Pedroza ), another instructive case, the victim told three different responding officers that her husband had burned her.   The Court of Appeal held that her statements to the officers were spontaneous statements and nontestimonial because the primary purpose of the officers' inquiries were to meet an ongoing emergency and “the statements were hardly taken under the calm circumstances of a formal interrogation.”  (Id. at p. 794.)  “They were not the result of a tape-recorded statement taken at a police station, as in Crawford, or a handwritten account prepared in a room with an officer nearby, as in Hammon [v. Indiana (2006) 547 U.S. 813].   Nor did the statements purport to describe past events that occurred some time ago.”  (Ibid.)

Like the statements made by the victims in Corella and Pedroza, the primary purpose of the statements made by Farmer and Chappell to Sergeant Banuelos were to assist him in responding to an ongoing emergency.   When Sergeant Banuelos arrived at the gas station, which was just 15 minutes after Farmer and Chappell had been held up at gunpoint, the assailant, who was armed and driving a stolen vehicle, was at large.   Farmer and Chappell, who feared for their lives when the incident occurred, were undoubtedly still afraid that the assailant would return.   They were nervous, agitated, and hard to calm down.   Their descriptions of what occurred and the physical appearance of the assailant “were hardly taken under the calm circumstances of a formal interrogation.”  (Pedroza, supra, 147 Cal.App.4th at p. 794.)   Moreover, unlike the interrogation in Crawford, which took place at the police station some time after the incident, the responses elicited by Sergeant Banuelos occurred at a gas station when Farmer and Chappell were still under the stress of what had happened to them.

In sum, when we “ ‘objectively’ ” consider “all the circumstances that might reasonably bear on the intent of the participants in the conversation,” it is clear that the “primary purpose in giving and receiving [the statements by Farmer and Chappell was] to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.”   (Cage, supra, 40 Cal.4th at p. 984.)   Accordingly, the statements were not testimonial in nature and thus not subject to the requirements of Crawford.

III. Victims' Invocation of the Fifth Amendment

A. Appellant's Argument

Appellant argues “the trial court committed reversible error by allowing the victims to assert a blanket privilege against self-incrimination without requiring them to be sworn and respond to questions so that it could determine whether each victim had a valid Fifth Amendment privilege.”

B. Summary of Proceedings Below

Before trial commenced, the prosecution explained to the trial court that both Farmer and Chappell were in custody on unrelated “murder charges[.]”  The prosecution stated its intention to call Farmer and Chappell as witnesses but warned the trial court that both witnesses had indicated an unwillingness to cooperate.   The trial court stated that it wanted to hear from the victims and their counsel to determine whether they would be testifying at appellant's trial.

Chappell appeared first before the trial court.   Chappell's counsel was present, but the prosecution was not.   Chappell's counsel stated that he was “fully aware of the circumstances of Mr. Chappell's murder case” and in his assessment, Chappell's testimony in appellant's case would not “in any way” incriminate Chappell.   When asked by the trial court whether he intended to testify, Chappell maintained, despite his counsel's advice:  “No. I'm not going to testify.   I'm not going to testify.”   The trial court adjourned the proceeding, stating that the prosecution should be present before any formal invocation of the Fifth Amendment by Chappell.

Farmer then appeared before the trial court represented by counsel, this time with the prosecution present.   Farmer's counsel stated that Farmer was currently awaiting “a district attorney decision on a special circumstance case” and that Farmer's possible testimony at appellant's trial “raise[d] some rather sensitive issues.”   Farmer's counsel went on to explain that he did not know whether the prosecution in Farmer's case would seek the death penalty and thus the defense had to deal with “potential penalty phase” issues if Farmer were to testify in appellant's case.   Counsel maintained that there were “issues” related to appellant's case “that would pose a problem for [Farmer], if he were to testify[.]”  For these reasons, counsel had advised Farmer not to testify at appellant's trial.

The prosecution argued that it had a right to call Farmer as a witness and that Farmer could then assert his Fifth Amendment guarantee “on a question by question basis” while on the witness stand.   The prosecution also made clear that it would not seek to obtain immunity for either Farmer or Chappell in exchange for their testimony at appellant's trial.   The trial court then asked Farmer:  “Mr. Farmer, I have to ask this for the record.   The bottom line is this.   Rather than have you come into open court in front of the jury, at this point in time, it is my understanding that if called to testify as a witness in this matter, you would take the oath to tell the truth, but thereafter questions posed to you, you would refuse to answer on the basis you believe those answers might tend to incriminate you;  is that accurate?”   Farmer replied:  “Yes.” The trial court accepted Farmer's invocation of the Fifth Amendment based on his counsel's representations that testifying at appellant's trial might possibly incriminate him.

Chappell later appeared before the trial court, this time with the prosecution present.   The trial court asked Chappell:  “Is it accurate to say, if called to testify in this matter, you would take the oath and if questions were put to you, you would thereafter refuse to answer the questions?   Is that a fair statement, sir?”   Chappell replied:  “Yeah.” With that response, the trial court made a finding that “Mr. Chappell, if called to testify as a witness in this matter, would in fact invoke his Fifth Amendment right against self-incrimination.”   The trial court indicated that its decision was based on the same reasoning that it had applied in Farmer's case.

The trial court then declared both Farmer and Chappell unavailable for trial and indicated to the prosecution that it was free to read prior statements by Farmer and Chappell into the record.   The prosecution clarified that Farmer and Chappell did not testify at the preliminary hearing and that the prosecution intended to admit the statements Farmer and Chappell made to both Officer Ashley and Sergeant Banuelos as spontaneous statements.

C. Relevant Authority

The Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee the privilege against self-incrimination.  (People v. Seijas (2005) 36 Cal.4th 291, 304 (Seijas ) [“It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves”].)   The privilege against self-incrimination consists of “two separate and distinct testimonial privileges․  In a criminal matter a defendant has an absolute right not to be called as a witness and not to testify.  [Citations.]  Further, in any proceeding, civil or criminal, a witness has the right to decline to answer questions which may tend to incriminate him in criminal activity [citation].”  (Cramer v. Tyars (1979) 23 Cal.3d 131, 137.)

The privilege against self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure.”  (Hoffman v. United States (1951) 341 U.S. 479, 486.)  “California's Evidence Code states the test broadly in favor of the privilege:  ‘Whenever the proffered evidence is claimed to be privileged under Section 940 [the privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him;  and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.’  (Evid.Code, § 404, italics added.)”  (Seijas, supra, 36 Cal.4th at p. 305.)

“It is ‘the duty of [the] court to determine the legitimacy of a witness'[s] reliance upon the Fifth Amendment.  [Citation.]’  (Roberts v. United States (1980) 445 U.S. 552, 560, fn. 7.)” (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez ).)  “To avoid the potentially prejudicial impact of having a witness assert the privilege against self-incrimination before the jury, we have in the past recommended that, in determining the propriety of the witness's invocation of the privilege, the trial court hold a pretestimonial hearing outside the jury's presence.”  (People v. Mincey (1992) 2 Cal.4th 408, 441;  see also Lopez, supra, at p. 1555 [“Initial inquiries intended to test the validity of the claim should be conducted outside the presence of the jury”].)   While recommended, such a pretestimonial hearing is not “required.”   (People v. Hill (1992) 3 Cal.4th 959, 992.)   In determining whether a valid privilege exists, the court should “consider the context and circumstances in which [the privilege] is claimed.”  (People v. Ford (1988) 45 Cal.3d 431, 441 (Ford ).)

“If the court finds a valid privilege exists, it can either limit the questions the parties may ask before the jury or excuse the witness, if it becomes clear that any testimony would implicate the privilege.”  (Lopez, supra, 71 Cal.App.4th at p. 1555.)  “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.”  (Id. at p. 1554.)

D. Analysis

At the outset we note that the People argue that appellant has waived this issue by failing to object to the trial court's ruling below.   While it is true that appellant did not object below, the prosecution did object to the trial court's ruling and this was sufficient to make an adequate appellate record and preserve the issue for review.  (People v. Brenn, supra, 152 Cal.App.4th at p. 174.)

We turn now to the trial court's acceptance of Farmer's invocation of the Fifth Amendment privilege.

Outside the presence of the jury, Farmer's counsel explained in a pretestimonial hearing that Farmer was in custody for murder and was possibly facing the death penalty.   Counsel represented to the trial court that if Farmer were to testify in appellant's case, Farmer's testimony might “raise some rather sensitive issues” and could “pose a problem” for Farmer in the penalty phase of his murder prosecution.   The prosecution also made clear that it had no intention of seeking immunity for Farmer in exchange for his testimony at appellant's trial.   Although Farmer's counsel did not provide significant detail on how Farmer's testimony might incriminate Farmer, he did specify that if Farmer were to testify, Farmer's testimony could detrimentally affect the penalty phase of Farmer's murder prosecution.   Given that a trial court should reject a witness's invocation of the Fifth Amendment only when it “ ‘clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege,’ ” the trial court properly accepted Farmer's invocation of the Fifth Amendment under these circumstances.  (Seijas, supra, 36 Cal.4th at p. 305.)

Appellant criticizes the trial court for failing to place Farmer under oath and asking Farmer specific questions to determine whether Farmer's invocation of the Fifth Amendment was valid.   Although examining a witness under oath is certainly advisable (see, e.g., Ford, supra, 45 Cal.3d at p. 441), our research reveals no case, and appellant cites no such case, that holds it is reversible error if a trial court fails to examine the witness under oath.   The trial court has the duty to determine the validity of the witness's invocation of the Fifth Amendment (Roberts v. United States, supra, 445 U.S. at p. 560, fn. 7), and as explained above, the trial court did so in Farmer's case.

Chappell's invocation of the Fifth Amendment, however, poses a different situation.   Neither Chappell nor his counsel made any representations that Chappell's testimony at appellant's trial would prove possibly prejudicial or incriminating for Chappell.   In fact, Chappell's counsel stated that he was fully aware of the circumstances of the murder charge against Chappell and he could not see “in any way” how Chappell's testimony at appellant's trial could be harmful.   After Chappell indicated that he would not testify at appellant's trial, the trial court made no further inquiry as to the context and circumstances under which Chappell was invoking the Fifth Amendment.  (Ford, supra, 45 Cal.3d at p. 441.)

The People contend that “inasmuch as Chappell and Farmer faced the same charges and possible penalty, the trial court could fairly conclude that issues related to appellant's case would be equally problematic for Chappell.”   The record, however, merely indicates that both Chappell and Farmer were in custody on “murder charges” and that Farmer possibly faced the death penalty.   We have found nothing in the record to suggest that Farmer and Chappell were charged with the same murder or murders, or that their respective murder charges were related.

In sum, we conclude it was error for the trial court to allow Chappell to assert the Fifth Amendment without additional inquiry.

The error, however, was harmless beyond a reasonable doubt.   Had the trial court conducted additional inquiry into the reasons for Chappell's invocation and determined that Chappell had a valid Fifth Amendment privilege, then it would have allowed Chappell to avoid invoking that privilege before the jury.   (Lopez, supra, 71 Cal.App.4th at p. 1554 [“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”].)   Had the trial court determined that Chappell did not have a valid privilege, then it would have compelled Chappell to take the witness stand.   Once on the witness stand, if Chappell refused to testify, the trial court could have declared him in contempt of court, and the jury could have drawn a “negative inference” from his refusal to testify.  (Ibid.) There was, however, overwhelming evidence of appellant's guilt to overcome any negative inference from Chappell's refusal to testify.   Specifically, Farmer's descriptions of the assailant to Officers Ashley and Sergeant Banuelos, which were properly admitted, was almost identical to the observations that Sergeant Banuelos made of the passenger who fled from the green Camry.   The owner of the green Camry stated that she had loaned the vehicle to appellant, and appellant's booking photograph was identified by Sergeant Banuelos as the person he saw fleeing from the green Camry.   Moreover, Farmer stated that the assailant was carrying a blue steel revolver and that same type of gun was found in the green Camry that appellant was seen fleeing from.   Finally, Parron, appellant's accomplice in the matter, identified appellant to Detective Williams as the person who took Farmer's Equinox at gunpoint.   Thus, whatever “negative inference” the jury would have drawn from Chappell's refusal to testify, there was ample evidence from which the jury could have concluded that appellant was the assailant beyond a reasonable doubt.

IV. Funds for Expert Witness

A. Appellant's Argument

Appellant contends the trial court committed reversible error by denying his request for additional funds to hire an expert on the psychological factors affecting eyewitness identification.

B. Summary of Proceedings Blow

Several months before the start of trial, appellant filed an application for the appointment of an expert psychologist.   In support of that application, defense counsel averred that he had consulted with a psychologist, Dr. Robert Shomer, and that Dr. Shomer, if called as a witness, would testify generally about the psychological factors that likely affect the reliability of eyewitness identification.   The trial court, presided over by Judge Stephen Marcus, granted appellant's application and approved $1,800 in expenses to retain Dr. Shomer.

Approximately a month before trial, appellant filed an application for additional funds to retain the services of Dr. Shomer.   In support of the application, defense counsel averred that the trial court had approved only $1,500 6 in expenses and Dr. Shomer required an additional $500 to testify at trial.   Judge Marcus denied appellant's application for additional funds.

The day before jury selection began, defense counsel explained that he “wanted to put on the record” the fact that Dr. Shomer would not be testifying at appellant's trial because Judge Marcus denied the request for an additional $500.   The trial court (now presided over by Judge Bob Bowers) noted that the Superior Court's panel of expert witnesses publication listed Dr. Shomer's hourly rate at $150 per hour.   In the trial court's view, it was reasonable for Judge Marcus to approve $1,500, which was sufficient to cover the costs of Dr. Shomer reviewing the case and testifying at trial.   Defense counsel maintained that Dr. Shomer worked on a flat-fee basis and would not testify unless the trial court approved an extra $500.

Two days later, while jury selection was still taking place, the trial court announced it had done more research on the issue of appellant's request for additional funds and had discussed the matter with Judge William Pounders, the chair of the Expert Witness Committee.   After clarifying that appellant intended to use Dr. Shomer's expert testimony to challenge Sergeant Banuelos's identification of appellant's booking photograph as the person he saw fleeing from the green Camry, the trial court concluded that appellant was not entitled to expert services at all under People v. McDonald (1984) 37 Cal.3d 351 (McDonald ).   The trial court reasoned that although the officer's identification was an element of the prosecution's case, it was not the “key” element of the case and there was other evidence that gave independent reliability to the identification.

C. Relevant Authority

Evidence Code section 730 provides:  “When it appears to the court ․ that expert evidence is or may be required by the court or by any party to the action, the court ․ may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.   The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.”

“[C]ourt-ordered defense services may be required in order to assure a defendant his constitutional right not only to counsel, but to the effective assistance of counsel.”  (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.)  “[I]t is only necessary services to which the indigent defendant is entitled,” however, “and the burden is on the defendant to show that the expert's services are necessary to his defense.”  (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304.)  “The decision on the need for the appointment of an expert lies within the discretion of the trial court and the trial court's decision will not be set aside absent an abuse of that discretion.”   (Ibid ;  People v. Hurley (1979) 95 Cal.App.3d 895, 899 [“However, the decision to grant a defendant's request for the appointment of such an expert remains within the sound discretion of the trial court”].)

D. Analysis

Appellant argues that it was an abuse of discretion for the trial court to deny his request for additional funds to secure the testimony of Dr. Shomer.   According to appellant, “here, as in McDonald, the eyewitness identification was critical because it was the foundation of the prosecution's case against appellant.”   The error was prejudicial, according to appellant, because it “prevented the defense from presenting evidence that may have cast reasonable doubt on the accuracy of Banuelos's identification of appellant as portrayed in the prosecution's case.”

Appellant's attempt to analogize his case with McDonald, supra, 37 Cal.3d at p. 377, is misguided.   In McDonald, the only evidence linking the defendant to the charged crimes of murder and robbery was eyewitness testimony.   Six eyewitnesses identified the defendant as the assailant with varying degrees of equivocation, and one eyewitness categorically testified that defendant was not the assailant.  (Id. at p. 355.)   The defendant had a strong alibi-six witnesses testified that he was not in the state on the day the crimes were committed.  (Ibid.) Under these circumstances, the Supreme Court held that it was an abuse of discretion for the trial court to preclude expert testimony on the psychological factors that could affect the accuracy of eyewitness testimony.  (Ibid.)

In doing so, the Supreme Court emphasized “that the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion” and that “such evidence will not often be needed.”  (McDonald, supra, 37 Cal.3d at p. 377.)   Only in circumstances where “an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability,” would it be error for the trial court to exclude qualified expert testimony on psychological factors that could affect the accuracy of the identification.   (Ibid.)

The Supreme Court revisited the issue of expert testimony on eyewitness identification some years later in People v. Sanders (1995) 11 Cal.4th 475 (Sanders ).   In that case, the defendant was convicted of multiple murders that occurred during the robbery of a fast food outlet.   On appeal, the defendant, citing to McDonald, argued that it was an abuse of discretion for the trial court to exclude expert testimony on psychological factors affecting eyewitness testimony.  (Sanders, supra, at p. 508.)   Rejecting the defendant's argument, the Supreme Court explained that the defendant's case differed from McDonald in several significant respects:  First, the eyewitness testimony in the defendant's case, unlike in McDonald, was “strong and unequivocal.”  (Sanders, supra, at p. 509.)   Second, unlike in McDonald, the eyewitness identification was “corroborated by other independent evidence of the crime,” such as evidence that the defendant was in possession of a weapon that was consistent with the weapon used in the crime and evidence that the defendant had solicited help with robbing the fast food outlet in the past.  (Sanders, supra, at p. 509.)   Third, the defendant, unlike in McDonald, presented no alibi defense.  (Sanders, supra, at p. 509.)

Here, as in Sanders and unlike in McDonald, the eyewitness testimony was certain and unequivocal.   Sergeant Banuelos identified appellant as the man he saw running from the green Camry without hesitation.   Furthermore, there was independent evidence that appellant had committed the charged crimes.   Farmer described the assailant as having tattoos of a teardrop on his face and a hand making a gang sign on his arm.   Appellant had both these tattoos at the time of his arrest.   During the field showup, Farmer and Chappell identified a specific vehicle (the green Camry) as the vehicle that was involved in the incident.   The registered owner of that vehicle told officers that she had loaned the vehicle to appellant.   Once in custody, Parron waived his Miranda rights and told Detective Williams that he was the lookout and that appellant was the person who took Farmer's vehicle and property at gunpoint.   Parron even circled a photograph of appellant in a six-pack display.   Finally, appellant presented no alibi defense.   Under these circumstances, it was not an abuse of discretion for the trial court to refuse additional funds to secure the testimony of Dr. Shomer.

Even if erroneous, the trial court's ruling was not prejudicial.   It is not reasonably probable that a result more favorable to appellant would have been reached in the absence of the ruling.  (Sanders, supra, 11 Cal.4th at p. 510;  People v. Watson (1956) 46 Cal.2d 818, 836.)   During trial, defense counsel vigorously cross-examined Sergeant Banuelos about his ability to observe appellant from a distance of 30 feet with limited lighting provided by the police vehicle.   During his closing argument, defense counsel argued that “it is quite impossible to positively identify the facial features of the suspect and more so to see, to identify that the suspect has a teardrop, the size, one-eighth of an inch on his cheek, from 30 feet away, dark at night.   Even though there were some lights illuminated, it is pretty much impossible.”   Counsel went on to argue that Sergeant Banuelos's concern with his own safety likely affected his ability to observe the fleeing passenger and that ultimately, “that identification by Sergeant Banuelos [was] very, very doubtful, and it's clearly erroneous.”   Furthermore, the trial court instructed the jury that in assessing eyewitness testimony, it should consider numerous factors that affect the accuracy of the identification, such as “the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation[,]” and whether the witness was “under stress” at the time.   In sum, given defense counsel's argument and cross-examination, and the trial court's instruction, it is not reasonably probable that appellant would have received a more favorable result had Dr. Shomer testified about the reliability of eyewitness identification.

V. Section 654

In relevant part, section 654, subdivision (a) provides:  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.   If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’  [Citation.]”  (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)  “[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.”  (People v. Felix (2001) 92 Cal.App.4th 905, 915.)  “ ‘It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.  [Citations.]  ․ [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.   [Citation.]’  [Citation.]”  (People v. Hicks (1993) 6 Cal.4th 784, 789.)

A defendant's intent and objective are questions of fact for the trial court.  (People v. Coleman (1989) 48 Cal.3d 112, 162.)   Consistent with that, case law establishes that “ ‘there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.  [Citation.]’  [Citation.]”  (Ibid.) Our task is to review factual determinations under the substantial evidence test.  (Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948, 959.)   If the trial court did not make any express findings regarding the defendant's intent, the judgment still must be upheld if it is supported by the evidence.   (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)

Appellant argues that the trial court should have stayed execution of the sentence on count 3 (the robbery of Farmer) “because appellant committed the robbery and carjacking during an indivisible course of conduct, in which he harbored only a single intent and objective.”

Substantial evidence supports the trial court's finding that appellant harbored two different intents and objectives when he committed the crimes of carjacking (count 1) and robbery (count 3) against Farmer.   Appellant approached Farmer while he was pumping gas.   He pointed a gun at Farmer and asked Farmer where he was from.   After Farmer replied that he did belong to a gang, appellant began searching Farmer's person for property.   Appellant stated “It's that 40's life” and then took $15 from Farmer's person.   Appellant went on to tell Farmer to step away from the Equinox and then instructed Chappell at gunpoint to exit the vehicle as well.   This evidence supports a finding that appellant had two separate intents and objectives in committing the crimes in question.   The first was to take cash from Farmer;  the second was to take Farmer's vehicle.   The act of taking Farmer's cash was extraneous to and independent of the act of taking Farmer's vehicle, and neither was incidental to the other.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The booking photograph depicts a teardrop tattoo on the left side of appellant's face, and not the right side as Sergeant Banuelos had originally recalled.   At trial, Sergeant Banuelos was shown the booking photograph and testified that with the benefit of the photograph, he recalled that the teardrop tattoo was indeed on the left side of appellant's face..  FN2. The booking photograph depicts a teardrop tattoo on the left side of appellant's face, and not the right side as Sergeant Banuelos had originally recalled.   At trial, Sergeant Banuelos was shown the booking photograph and testified that with the benefit of the photograph, he recalled that the teardrop tattoo was indeed on the left side of appellant's face.

FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda )..  FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda ).

FN4. The trial court gave a similar instruction with regard to Brown's refusal to testify.   Appellant does not contend that the trial court's decision to allow Brown not to testify was erroneous..  FN4. The trial court gave a similar instruction with regard to Brown's refusal to testify.   Appellant does not contend that the trial court's decision to allow Brown not to testify was erroneous.

FN5. Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford )..  FN5. Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford ).

FN6. Defense counsel explained that Judge Marcus had approved $1,800 in expenses in court.   However, according to counsel, Judge Marcus called counsel the next day and informed him that the approval of $1,800 was a “mistake” and that the proper amount was $1,500..  FN6. Defense counsel explained that Judge Marcus had approved $1,800 in expenses in court.   However, according to counsel, Judge Marcus called counsel the next day and informed him that the approval of $1,800 was a “mistake” and that the proper amount was $1,500.

_, P.J. BOREN _, J. DOI TODD

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