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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff/Respondent, v. Marvin HARRIS, Defendant/Appellant.

No. A044184.

Decided: July 11, 1990

George L. Schraer, San Diego, for defendant/appellant, Marvin Harris. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, John H. Sugiyama, Morris Beatus, Landra E. Rosenthal, San Francisco, for plaintiff/respondent, People.

Here a particularly gruesome murder case is before this court (Div. Two) for the third time.   In People v. Harris (1987) 192 Cal.App.3d 943, 237 Cal.Rptr. 747, appellant's original murder conviction (upon which the jury had imposed the sentence of death, but the trial court had acted to reduce the penalty) was reversed for error in the prosecutor's improper exercise of peremptory challenges.   In Harris v. Superior Court (1988) 201 Cal.App.3d 624, 247 Cal.Rptr. 620, a writ of mandate was also issued to prevent the People from adding new separate counts for robbery and kidnapping after the statute of limitations had run.   Appellant was then tried for murder a second time and was again convicted, receiving a sentence of life without possibility of parole.

Appellant's major contention in this, his third appearance before us, is again a well-founded one:  There was error in instructing the jury that a killing committed in the course of a kidnapping for the purpose of robbery is statutorily defined as a first degree felony murder.  (See Pen.Code, § 189 [listing crimes which may be predicates for first degree felony murder, which crimes do not include kidnapping but do include robbery].)

The People do not actually concede the error, but it seems clear that the real issue here is whether the error could be found harmless in a case in which (1) the evidence showed the first degree felony murder statute clearly applied despite any misinstruction;  (2) the murder was carried out by pouring Pine–Sol down the victim's throat and by battering her skull in the course of a robbery and kidnapping;  (3) the robbery is a necessarily included offense of the kidnapping for robbery which the jury found occurred;  (4) a robbery allegation was among those found by the jury to be true in its special circumstance findings;  and (5) the appellant was captured while driving in the victim's stolen car on the day after the murder, still wearing pants spattered with Pine–Sol and the blood of the murder victim, and with her stolen religious medals in the pocket of his coat.

We agree with appellant that the jury instruction on first degree felony murder was erroneous.   However, we also conclude from a review of the record that, on the particular facts of this case, the error was harmless to appellant;  and if it had any effect, it only worked to his benefit.   Under the erroneous instruction, the People in fact proved to the jury not only that the murder occurred in the course of a robbery—as the relevant statute requires—but also that it occurred in the course of a kidnapping, which the statute does not require.   The addition of an unnecessary element to the People's burden of proof did not harm appellant, on this record.

Appellant next presents an unusual claim that the trial court erred in failing to admit into evidence at his second trial a transcript of his testimony at his first trial, after appellant allegedly became “unavailable” as a witness when he refused to testify at the second trial.   He finally contends the trial court should have somehow compelled him to testify at the second trial despite his apparent invocation of his right not to testify.   We reject these contentions.   Therefore, we affirm the conviction.


We briefly summarize the relevant facts and procedural history in order to provide necessary background for an understanding of the legal issues.

The victim went grocery shopping in San Pablo during the early evening of January 19, 1981.   Next to the grocery store she patronized was a liquor store.   Two young black males were in the parking lot between the stores.   They attracted attention by urinating on a street lamp and by harassing a bagger who worked at the grocery store.   They also entered the liquor store and purchased Payday candy bars.

When the victim emerged from the grocery store, she was accompanied by a bagger, who was helping her with her groceries.   Her car was a distinctive type of Lincoln Continental, with personalized plates bearing the victim's first name and initial.   The victim's car was unlocked, but she could not find her car keys.   She told the bagger to go back to work while she tried to find her keys.

Witnesses saw the victim's car leave the parking lot “real fast like it was shot out of a cannon․”  It was being driven by a young black male who was driving in an erratic manner with his left hand, while “reaching around ․ hitting something ․ to keep it down.”   When the victim did not return to have dinner with her husband, the police were notified of her disappearance.

On the following day, appellant was stopped while driving the victim's car in Southern California.   The personalized license plates had been removed from the car;  they were later found in the trunk together with the victim's grocery bags.   Appellant was carrying someone else's wallet and driver's license.   He said the car belonged to his “aunt.”

In the pocket of a blue coat appellant had with him were two religious medals which had belonged to the victim, together with a Payday candy bar.

There was also one blood stained glove in the car.   The appellant had with him a coat smeared with blood of the victim's type.   Appellant's pants were also spattered with the same type of blood and with Pine–Sol.

Appellant proceeded to tell a highly improbable story about how he was given the car by a woman who was not his aunt.   He was told he would be charged with murder if the victim was found dead.   He replied that if her dead body was found he “ ‘[would] have to do time for it.’ ”

Appellant was returned to Northern California;  and on January 22, 1981, the day before the victim's body was discovered, he was placed in a holding cell with other prisoners.   One of the other prisoners was Keith Crummie, who was in custody for some burglaries and was a member of a group or gang known as “The Together Brothers” to which appellant also belonged.   Appellant spoke with Crummie, saying that appellant had stolen a Lincoln from “[s]ome white lady” and had forced her into the car.   Appellant said he drove to a shoreline area, forced the victim to orally copulate him, took some money from her, beat the victim with a brick, slit her throat, and poured Pine–Sol down her throat.   He then threw the brick into the water and drove the car to Los Angeles.

Appellant's various statements were also heard by another prisoner, who recounted that appellant said he had killed a woman and disposed of the body in water, and that “the bitch would never float up․”  Yet another prisoner confirmed that appellant had talked about the crime, and that the victim had been thrown into the water where “ ‘They'll never find her[.’]”

The next day the victim's body was discovered at a shoreline area.   Her trousers were pulled down and her sweater was pulled up.   A broken bottle of Pine–Sol which was covered with hair and blood from the victim was found at the site.

The victim had died of head injuries.   It was possible the injuries were caused by a broken glass bottle.   Fragments of brick were also found in wounds on the victim's head.   There were wounds on her neck which were consistent with the glass from the Pine–Sol bottle.   Her clothing had Pine–Sol, vomit, and blood on it.   Her open purse was found at the scene;  other than a few coins, it contained no money.

The evidence summarized above was adduced at the second trial by the prosecution.   The defense by contrast presented evidence that appellant had below normal intelligence and was a follower rather than a leader.

There was further evidence tending to confirm this implication that another person or persons had been involved in the crimes.   Appellant's friend, Stanley Woodard, had been seen by two witnesses driving the victim's car, with appellant as a passenger.   A third person, a woman about the victim's age who was not black, was also in the car.   Rumors on the street connected both Woodard and Crummie to the crime.   A single bloodstained glove found in the victim's car appeared to be the mate of a single glove which an officer saw in Woodard's home.   However, when the officer returned to inspect the glove more closely, it was gone.

Appellant had testified at his first trial and had implicated Crummie and Woodard.   In this prior testimony, appellant had stated Woodard and Crummie had perpetrated the crimes and then somehow framed appellant;  appellant had been present for part of the time during the murder but had not participated (and in fact had turned his back to the scene because he did not want to witness it);  and appellant had been given the victim's car after the crime simply because appellant liked the looks of it, even though the others wanted to destroy it.   Of course, this testimony could not explain the forensic evidence we have referred to, which showed that blood and Pine–Sol had been spattered on appellant's pant legs, as if appellant had been straddling, beating, or struggling with the victim when the spattering occurred.

Appellant's counsel called him to testify at the second trial, but appellant refused to testify.   Out of the presence of the jury, defense counsel and the trial court attempted to persuade appellant to take the stand;  but appellant steadfastly refused.   Appellant's counsel then sought to have appellant's testimony at the first trial admitted pursuant to Evidence Code section 1291 on the ground that appellant was “unavailable” to testify, but the trial court refused to allow the admission of the prior testimony when appellant was in court but simply refused to testify.

The trial court instructed the jury on both premeditated murder and felony murder as prerequisites for first degree murder.   The People requested, and the trial court gave to the jury, an instruction that a killing which occurs in the course of a kidnapping for robbery is first degree felony murder.

The jury found appellant guilty of first degree murder.   The jury found to be true the robbery and kidnapping special circumstance allegations.   The jury also found appellant guilty of the crime of kidnapping for the purpose of robbery.

The trial court sentenced appellant to life without possibility of parole.   Appellant timely appealed.


A. Erroneous Instruction on First Degree Felony Murder1. The Error

 The People requested, and the trial court gave to the jury, an instruction that a killing which occurs in the course of a kidnapping for the purpose of robbery is first degree felony murder.1  (See Pen.Code, § 209.)

Penal Code section 189 (hereafter section 189) lists the crimes which the Legislature has specified as the possible predicates for first degree felony murder;  they include robbery, but do not include either kidnapping or kidnapping for the purpose of robbery.   Therefore, the instruction given was erroneous.  (People v. Bigelow (1984) 37 Cal.3d 731, 750, 209 Cal.Rptr. 328, 691 P.2d 994 [“The trial court erroneously instructed the jury that murder perpetrated during the commission of a kidnapping is first degree murder․  Kidnapping is not listed in section 189.”];   accord People v. McKinney (1979) 95 Cal.App.3d 712, 741, 157 Cal.Rptr. 414 [“The court committed error in including kidnapping to commit robbery, together with robbery and burglary, in its statement of the inherently dangerous offenses included within first degree felony murder.  (Pen.Code, § 189.)”].)

Despite these authorities, the People lamely suggest there was no error.   According to the People's theory, the Legislature should be considered to have included in section 189 the crime of kidnapping for robbery, since it is a more serious crime than robbery, which the Legislature specifically included.   As appellant observes with respect to the People's argument, “Respondent argues that because kidnapping for purpose of robbery is a more serious felony than robbery, and because it involves the same criminal intent as robbery, it, like robbery, should be a basis for a first-degree felony murder.   Undaunted by the fact that Penal Code section 189 does not list kidnapping for purpose of robbery as a felony qualifying for a first degree murder conviction, respondent argues that the [L]egislature somehow really did include that felony in section 189․  Respondent's argument, while fascinating, is really nothing more than improper appeal to this Court to rewrite section 189 to comport with what respondent believes is a more enlightened version of the statute than the one the Legislature enacted.   Appellant respectfully submits that if respondent wants the statute rewritten, it should ask the Legislature, not this Court, to rewrite it.”

We agree that we lack the power to insert a new predicate offense into the statute, especially where it has been authoritatively established for many years that the particular statute may not be rewritten in this fashion by the courts.   We do recognize it is perhaps anomalous that the statute does not list kidnapping for the purpose of robbery, while it lists the seemingly less serious crime of robbery.   The People may even be correct in their surmise that, if in 1872 the drafters of section 189, or a succeeding Legislature, had specifically considered the crime of kidnapping for robbery created by the 1901 Legislature, kidnapping for robbery might well have been included in section 189.  (See People v. Daniels (1988) 202 Cal.App.3d 671, 675–676, 248 Cal.Rptr. 753 [analyzing the legislative history of the crime of kidnapping for robbery].)   However, “it is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words․”  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 470 P.2d 617.)   We reject the People's suggestion that we should ourselves employ legislative methods to avoid recognizing the existence of an instructional error previously condemned as such by the courts.

2. The Error Was Harmless Here

 We also conclude the error does not require reversal on these facts.   It is apparent from the evidence summarized in section I of this opinion that there was substantial, indeed very strong, evidence to support the jury's conclusion appellant, whether alone or not, had murdered the victim.   The jury was instructed that the murder could be first degree murder either on a theory of premeditation, which was correct, or on a theory of first degree felony murder as a result of a kidnapping for robbery, which was an incorrect statement of the law.   Assuming as appellant suggests that the jury convicted upon the incorrect felony murder theory (see People v. Singleton (1987) 196 Cal.App.3d 488, 494, 241 Cal.Rptr. 842), the error is still harmless.   As we discuss below, the only possible effect of the error on this record was to add an additional unnecessary element of kidnapping to the People's case, making a conviction of first degree murder harder to obtain.   Such an error obviously does not require reversal of the conviction.

First, we observe that this is not the only time this particular instructional error has occurred and has been found harmless.   In People v. McKinney, supra, it was found harmless because, as occurred here, other conclusions reached by the jury removed any likelihood of harm to the appellant:  “The court committed error in including kidnapping to commit robbery ․ in its statement of the inherently dangerous offenses included within first degree felony murder.  (Pen.Code, § 189.)   Yet the jury convicted [appellant] not only of kidnapping [one victim] to commit robbery, but also of robbing [both of the victims]․  It is inconceivable that the jury could have concluded that [appellant] kidnaped [a victim] to commit robbery while also concluding that he was innocent of the two robberies․  The error was not and could not have been prejudicial.  (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], and cases cited.)”  (95 Cal.App.3d at p. 741, 157 Cal.Rptr. 414, emphasis added, parallel citation omitted;  see also People v. Ramirez (1987) 189 Cal.App.3d 603, 614–615 and fn. 13, 236 Cal.Rptr. 404 [This court (Div. Two) observed an analogous instructional error would be harmless because “it is so implausible as to be virtually inconceivable” that a juror would find one crime occurred but another closely connected crime did not.  “Since there was no realistic possibility of disagreement among the jurors ․, any error ․ was harmless.”].) 2

The critical issue in appellant's case is that the jury found true the special circumstance allegation, that appellant killed the victim in the course of a robbery;  further, the jury also convicted him of the separate crime of kidnapping for the purpose of robbery.   Here, we find most instructive the analysis of a recent Supreme Court case disclosed by our own research, which found harmless a similar error in a first degree felony murder instruction, People v. Garrison (1989) 47 Cal.3d 746, 778–779, 254 Cal.Rptr. 257, 765 P.2d 419.   In Garrison, as in our case, the jury was instructed on both premeditated and first degree felony murder.  (P. 766, 254 Cal.Rptr. 257, 765 P.2d 419.)   As in our case, the jury was erroneously instructed on first degree felony murder, the error in Garrison being a misinstruction that a murder committed in the course of a certain type of burglary was first degree felony murder.  (P. 778, 254 Cal.Rptr. 257, 765 P.2d 419.)

“Despite the [erroneous] instruction, however, we are not compelled to reverse the conviction of first degree murder, since the conviction can be upheld on the alternative basis of felony murder premised on the robbery․  The court instructed the jury on first degree felony murder based on either robbery or burglary, and the evidence would support a finding of robbery as to each of the murder victims.   The prosecution argued that the killings, the robbery, and the burglary were a continuous course of conduct․  Thus, the jury could [validly] find a robbery [concurrent with the murder]․”  (Id., 47 Cal.3d at pp. 778–779, 254 Cal.Rptr. 257, 765 P.2d 419.)

“Additional support for our conclusion that the burglary felony-murder instructional error was harmless is found in the true finding of the robbery-murder special circumstance․  Since the jury necessarily found the killing in the course of a robbery, the [erroneous] instruction, as given, is of no consequence.  (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913]).”  (Id., 47 Cal.3d at p. 779, 254 Cal.Rptr. 257, 765 P.2d 419, emphasis added, parallel citations omitted;  accord People v. Hernandez (1988) 47 Cal.3d 315, 351, 253 Cal.Rptr. 199, 763 P.2d 1289 [“The special circumstance findings adequately serve that purpose [of determining the jury properly convicted of first degree murder].”   Fn. omitted.].3 )

Our analysis is also consistent with that of the Supreme Court in People v. Ainsworth (1988) 45 Cal.3d 984, 248 Cal.Rptr. 568, 755 P.2d 1017, another case disclosed by our own research.  Ainsworth was a unanimous affirmance of a murder conviction and imposition of the death penalty, in circumstances which bear some remarkable similarities to our case.   As in our case, two assailants approached a woman of another race in a parking lot, overpowered her, and drove her away in her car;  the victim was kidnapped, robbed, and murdered;  due to the passage of time before the corpse was discovered, forensic evidence was unavailable to confirm any indications of sexual molestation of the victim.   (Id. at pp. 994–997, 248 Cal.Rptr. 568, 755 P.2d 1017.)   As in our case, the jury was instructed on both premeditated murder and felony murder.  (Id. at p. 1000, 248 Cal.Rptr. 568, 755 P.2d 1017.)   As in our case, the jury convicted on first degree murder, and found true the special circumstance allegations of robbery and kidnapping.  (Id. at p. 993, 248 Cal.Rptr. 568, 755 P.2d 1017.)

The appellant in Ainsworth claimed error arose because the trial court also instructed the jury on felony murder arising from a killing in the course of a rape, even though rape allegations had been dismissed;  and there was apparently insufficient evidence to sustain a rape conviction or special circumstance finding.  (45 Cal.3d at p. 1015 and fn. 16, 248 Cal.Rptr. 568, 755 P.2d 1017.)   However, the Supreme Court affirmed both conviction and death penalty because “we are able to determine from the record—specifically, the jury's finding of a robbery special circumstance—that the jurors agreed on that theory at least in reaching their verdict.   We therefore uphold the first degree murder conviction on the theory of felony murder in perpetration of a robbery.”  (Id. at pp. 1015–1016, 248 Cal.Rptr. 568, 755 P.2d 1017, emphasis added, fn. omitted.)  “First degree felony murder does not require proof of a strict causal relation between the felony and the homicide, and the homicide is committed in the perpetration of the felony if the killing and the felony are parts of one continuous transaction.  [Citations.]” (Id. at p. 1016, 248 Cal.Rptr. 568, 755 P.2d 1017.)  “There was ample evidence to support the jury's finding that the death occurred in the perpetration of the robbery.”  (Ibid.)

In appellant's case, the jury made a true finding on the robbery-murder special circumstance.   Robbery is a listed crime under section 189 for first degree felony murder.   Further, “The offense of robbery, of course, is necessarily included within the offense of kidnapping for the purpose of robbery where [as in our case] the kidnaper achieves his purpose.”  (People v. Ford (1966) 65 Cal.2d 41, 49, 52 Cal.Rptr. 228, 416 P.2d 132.)   It is also apparent, for the same reasons, that the jury's conclusion appellant intended to commit the crime of kidnapping for the purpose of robbery would include a finding of intent to commit robbery.

In short, in our case, the error is clearly harmless because on these facts the only effect of the erroneous inclusion of the words “kidnapping for” in front of the proper word “robbery” in the instruction was to force the People to prove a kidnapping, in addition to the robbery required by the statute, in order to obtain a first degree murder conviction.   Thus, the error does not require reversal under any standard.  (People v. Garrison, supra, 47 Cal.3d at p. 778, 254 Cal.Rptr. 257, 765 P.2d 419;  People v. Odle (1988) 45 Cal.3d 386, 415, 247 Cal.Rptr. 137, 754 P.2d 184;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. McKinney, supra, 95 Cal.App.3d at p. 741, 157 Cal.Rptr. 414;  cf. People v. Ramirez, supra, 189 Cal.App.3d at pp. 614–615, 236 Cal.Rptr. 404.)

B. Appellant's Refusal To Testify

 Appellant's remaining contentions incongruously claim error arose from appellant's own refusal to testify.   Although appellant had testified at his first trial, at the second trial when he was called to the stand by his counsel, appellant stated, “I don't have no comments.”   At the prosecutor's request, the jury was excused;  and both appellant's counsel and the trial court sought to persuade appellant to testify.   However, appellant remained determined not to testify;  and both the trial court and appellant's counsel observed that he had that right under the Fifth Amendment.

Appellant's counsel then sought to introduce a transcript of appellant's former testimony from the first trial, on the grounds that appellant was “unavailable” to testify at the second trial under Evidence Code section 1291 (hereafter section 1291).   The trial court aptly explained its reason for rejecting this request:  “I don't believe it's appropriate under the circumstances.   He can't make himself unavailable and say now you can use the transcript for those purposes.   I won't permit it.”

Appellant makes interrelated claims of error here.   He first claims that the trial court erred in refusing to admit the transcript of his former testimony as an exception to the hearsay rule, due to his “unavailability” within the meaning of section 1291 and Evidence Code section 240 (hereafter section 240);  further he claims that, even if the refusal to admit his prior testimony was proper as a matter of statutory law under the Evidence Code, it still violated his rights to due process of law, since it deprived him of the opportunity to present his defense.   His final claim is that the trial court erred in failing to take more drastic measures to induce appellant to testify.   We reject these contentions.

We begin with an examination of the relevant provisions of the Evidence Code.  Evidence Code section 1290, subdivision (a) defines “ ‘former testimony,’ ” in pertinent part, as testimony given under oath “in a former hearing or trial of the same action.”   Obviously, appellant's prior testimony at the first trial qualifies under this standard.   However, section 1291 provides that former testimony is only available as an exception to the hearsay rule “if the declarant is unavailable as a witness․”  (§ 1291, subd. (a), emphasis added.)   The phrase “unavailable as a witness” is in turn defined by section 240, subdivision (a)(1) in terms which include a witness who is “Exempted or precluded on the ground of privilege․”  However, as we discuss below, both section 240 and relevant case law under it provide that a party does not become “unavailable” for purposes of an exception to the hearsay rule “if the exemption [on privilege grounds] ․ was brought about by the procurement ․ of the proponent of his or her statement․”  (§ 240, subd. (b).)

As the official comment to the section makes even more clear, “if the out-of-court statement is that of the party himself, he may not create ‘unavailability’ under this section by invoking a privilege not to testify.” 4  (Assem. Comm. on Jud. com., 29B West's Ann.Evid.Code (1966 ed.) § 240, p. 27.)

In our case, the People had had an opportunity to cross-examine the appellant at the first trial;  but the People limited the cross-examination to one question concerning appellant's ability to read.   While there was, thus, an opportunity for cross-examination here, we also observe that the procedure appellant proposes would prevent the jury from observing the testimonial demeanor of a witness who is actually present in the courtroom.  “The essence of the hearsay rule is that the witness is not in court and subject to cross-examination and is not available for the jury to judge his credibility.”   (People v. Bob (1946) 29 Cal.2d 321, 325, 175 P.2d 12, emphasis added.)

The loss of ability to observe testimonial demeanor obviously does not prevent introduction of the prior testimony of a witness who is unavailable for such reasons as death, disability, or absence from the jurisdiction, because there is simply no way to allow the jury to presently observe that demeanor.   However, there is no sufficient rationale for allowing a party who is necessarily present in the courtroom to refuse to testify, yet introduce his past testimony as a cold record where credibility is the critical issue.  (See 1 Witkin, Cal.Evidence (3d ed. 1986) § 562, p. 537 [“[I]f the statement is that of the party himself, he may not create ‘unavailability’ by invoking a privilege.”].)

It further seems quite possible that the reason the People limited their cross-examination of appellant to one question at the first trial was because, in the People's judgment, appellant's live testimony and demeanor were such as to render his testimony incredible to the jury (as it obviously was, given the verdict in the first trial).   However, on the cold record of the transcript, the appellant's testimony does not and would not carry any indications of demeanor.   Admission of the prior testimony in these circumstances would be incongruous partly because the transcript does not reflect all of the “ ‘former testimony,’ ” both the words and the demeanor, given at the first trial.

“Not only can the credibility of the witness on the stand be tested by cross-examination;  another purpose is served by the requirement of the witness' presence:  the trier of fact can ‘obtain the elusive and incommunciable evidence of a witness' deportment while testifying.’  [Citation.]  Wigmore states that ‘No one has ever doubted that the former testimony of a witness cannot be used if the witness is still available for the purpose of testifying at the present trial.’ ”  (Blache v. Blache (1951) 37 Cal.2d 531, 535, 233 P.2d 547, emphasis in original.)   The analysis of Professor Swift in her examination of the underlying rationales supporting the hearsay rule is also instructive here:  “Some commentators have suggested that [mere] appearances are important:  the hearsay rule promotes social acceptance of trial outcomes because the deficiencies of hearsay ․ ‘can be observed readily by anyone outside the system ․ [unlike witnesses about whom] the jury ostensibly has additional information that those absent could not possibly duplicate and those present could not fully communicate.’   This analysis of appearances presents a cynical view of why one might value a rule that prefers live, physical presence of witnesses over declarants, particularly those declarants who possess obvious motives for not telling the truth.”  (Swift, Abolishing the Hearsay Rule (1987) 75 Cal.L.Rev. 495, 512, fn. omitted;  initial bracketed word and initial ellipsis added, others in original.)

These considerations, obviously, parallel those identified by the Assembly Committee on the Judiciary in its comment to section 240, which refused to countenance the attempt of a party to have his cake and eat it too by (1) making himself unavailable by invocation of the privilege not to testify, which may be done at will, yet (2) introduce testimonial evidence without submitting to cross-examination in the presence of the jury.   While many of the considerations concerning testimonial demeanor we have noted would apply in any instance when prior testimony was sought to be admitted, we have discussed them in the context of the specific circumstances of this case in order to illustrate the problems which would arise from a contrary rule allowing a party to introduce his own prior testimony, while avoiding exposure of testimonial demeanor and related credibility questions to the finder of fact.5

 Not only has the Legislature explicitly rejected such an aberrational result, for the good reasons we have discussed at length herein;  it is certainly not required by constitutional compulsion in a criminal trial.   Appellant's due process argument fails not only because the policies embodied in section 240 are rational responses to the distinctions between parties and third party witnesses;  but also because the statute does not, as appellant contends, impermissibly burden his right to present a defense.   Appellant retains the right to testify or not to testify;  his exercise of that right does not create a due process violation even though it may have the effect of preventing the finder of fact from learning some evidence which might be relevant—indeed, that is the purpose of the privilege itself.  (Cf. Adamson v. California (1946) 332 U.S. 46, 57–58, 67 S.Ct. 1672, 1678–1679, 91 L.Ed. 1903.)

 Appellant also makes the interrelated contention that the trial court should have used more forceful methods to persuade appellant to testify.   We recognize that appellant may or may not have had a very good reason from the standpoint of legal strategy to refuse to testify, and his counsel judged he would benefit by testifying.   His counsel at trial (like his counsel in the three appearances before us) appears to have done a very good job under very trying circumstances, and probably appellant should have trusted to his counsel's judgment.

Still, we do not see what more the trial court could have done, within the bounds of reason.   Threatening appellant with jail for contempt would obviously be an exercise in futility;  he was already in custody.   Moreover, we think it quite possible that the trial court would have erred in threatening appellant for the exercise of a constitutional right.   The fact that appellant himself never used the magic words “Fifth Amendment” is of no consequence;  it is clear from the record that both his counsel and the trial court had advised him he had a constitutional right not to testify, and appellant could validly exercise that right.  (U.S. Const., 5th Amend.;  Cal. Const., art. I, § 15.)

Appellant relies in part on The State v. Simmons (1908) 78 Kan. 852, 98 P. 277 for the proposition that he had no right not to testify which would interfere with trial court attempts to order him to do so, since he had previously waived that right by testifying at the first trial.   Despite some loose language, the Simmons case simply held that the prosecution could introduce prior testimony of the defendant, such as a declaration against interest, without violating the privilege against self-incrimination.   The Simmons case specifically notes that no attempt was made to force the defendant to take the stand at his second trial.  (P. 853, 98 P. 277.)  (For a more modern parallel case from California, see People v. O'Connell (1984) 152 Cal.App.3d 548, 553–554, 199 Cal.Rptr. 542 [“[U]se of a defendant's prior trial testimony in a subsequent proceeding against him does not violate his privilege against self-incrimination.  [Citations.]”].)  In our case, also, the trial court and appellant's counsel informed appellant he had the right not to take the stand at the second trial.

Further, here, both the trial court and appellant's counsel tried to persuade appellant to follow his counsel's advice;  the prosecutor sought curative instructions regarding the refusal to testify because “I want to protect this record so we don't have to do it a third time.”   The trial court did not err when it did not adopt a more threatening and aggressive posture towards appellant's exercise of his constitutional right to refuse to testify in his criminal trial, a right the trial court and defense counsel would be required to honor even if they disagreed with the defendant's trial strategy.   (See U.S. Const., 5th Amend.;  Cal. Const, art. I, § 15;  People v. Robles (1970) 2 Cal.3d 205, 214–215, 85 Cal.Rptr. 166, 466 P.2d 710 [no error in allowing criminal defendant to decide whether to testify, despite contrary advice of defense counsel].)  “The defendant's insistence ․ may in the final analysis be harmful to his case, but the right is of such importance that every defendant should have it in a criminal case.”  (People v. Robles, supra, 2 Cal.3d at p. 215, 85 Cal.Rptr. 166, 466 P.2d 710.)

Appellant suggested at oral argument we should adopt a rule which would apply to persons of assertedly marginal or low intelligence;  and would require either the admission of prior testimony, or the interposition of fulminations from the trial judge, where low intelligence causes persons to invoke the right not to testify at a subsequent hearing.   However, we cannot simply insert new language regarding persons of limited intelligence, however defined, into section 240 of the Evidence Code where the Legislature did not include it.

Moreover, we do not believe we could properly require the trial judge to somehow override a competent defendant's invocation of a constitutional right—based only upon a judge's perception that such an invocation was unintelligent.   The defendant was found competent to stand trial and make such decisions;  constitutional rights, therefore, may be invoked with equal force by persons such as appellant.   The simple fact that appellant was convicted here (as well as in the first trial, where appellant did testify) does not allow us to reverse on the ground appellant made a decision during trial which he, not the trial judge, is allowed to make.  (See People v. Clark (1990) 50 Cal.3d 583, 624, 268 Cal.Rptr. 399, 789 P.2d 127 [observing that a defendant may validly “elect different trial tactics at a second trial․”;  and that the defendant, acting in propria persona, had failed to object at trial and thereby waived the right to object on appeal regarding the admission of important evidence].)

We further note that, even though appellant's testimony in the first trial presented a version of the events to the jury which blamed appellant's friend and a fellow gang member for carrying out the murder while appellant simply waited around passively, that testimony also had the effect of placing appellant, by his own admission, at the murder scene while the victim was being murdered.   This was something the People were unable to accomplish through the testimony of any other living percipient witness;  it had the effect of partially confirming (1) the other evidence of appellant's alleged jailhouse statements to fellow prisoners concerning his participation in the murder, revealing details about the crime which were not yet public knowledge;  and (2) the forensic evidence disclosing that gore and Pine–Sol had somehow been spattered on the front of appellant's pants in a way indicating appellant had participated in the murder, in a manner consistent with his jailhouse statements.   We certainly cannot leap to any conclusion that the trial court prejudicially erred on this record, whether in declining to compel appellant to provide partially self-incriminating evidence through his own live testimony, or by ruling against the admission of a record of such prior testimony after appellant declined to testify.

 Moreover, any claim of error arising from appellant's refusal to testify here apparently would not in any event justify reversal.   As our Supreme Court has recently observed in analogous circumstances, the doctrine of invited error applies where a defendant himself vetoes his counsel's attempts to present favorable testimony;  the resulting absence of testimony favorable to the accused “would not result in reversal of the judgment because the doctrine of invited error operates to estop a party from asserting an error when the party's own conduct has induced its commission [citation], and from claiming to have been denied a fair trial by circumstances of the party's own making [citation].”  (People v. Lang (1989) 49 Cal.3d 991, 1031–1032, 264 Cal.Rptr. 386, 782 P.2d 627.)

In our case, also, neither the appellant's counsel nor, obviously, the appellant requested that the trial court threaten appellant for his refusal to testify;  we think any objection to the trial court's failure to do so could fairly be held to have been waived.  (See People v. Amaya (1952) 40 Cal.2d 70, 78, 251 P.2d 324 [“Again appellant made no objection to the court's [alleged errors] at the trial and he may not now urge the point on appeal.”];   see also People v. Ellis (1987) 195 Cal.App.3d 334, 345, 240 Cal.Rptr. 708 [“Just as the law has no interest in punishing defendants more severely than has been ordained by the Legislature, the law also has a strong interest in seeing to it that defendants do not unfairly manipulate the system․  In addition, in some cases, a consequence of such unfair manipulation may be the premature release into society of previously incarcerated dangerous persons.”].)

When properly viewed in the context of the other evidence presented, and when considered together with the circumstances and the procedural history of this particular conviction, neither the instructional error which favored appellant nor appellant's refusal to testify can raise any issue requiring yet another reversal by this court.


The judgment of conviction is affirmed.


1.   The instruction was based upon a photocopy of the 1970 printing of CALJIC No. 8.21, with handwritten additions to areas left blank in the instruction, which we have indicated by using all capital letters:  “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or attempt to commit the crime of KIDNAPPING FOR ROBBERY, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.  [¶] The specific intent to commit KIDNAPPING FOR ROBBERY and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.”

2.   In People v. Bigelow, supra, the Supreme Court reversed on other grounds and, therefore, did not discuss harm from the instructional error.  (37 Cal.3d at pp. 745–746, 750, 209 Cal.Rptr. 328, 691 P.2d 994.)   The analysis of the subsequent cases decided by the Supreme Court which we discuss in this opinion would indicate the error is likely to be harmless in cases where, as here, there is a true finding on a robbery special circumstance allegation.

3.   In People v. Hernandez, supra, there was no claim of instructional error, but rather a claim that the evidence was not sufficient to sustain a finding of premeditated murder.   However, there was ample evidence that the crime was a first degree murder based upon the felony-murder doctrine;  and the jury found true the special circumstance that the murder occurred in the course of a robbery.   The Supreme Court observed that in the circumstances of that case, therefore, it could uphold the first degree murder conviction by referring to the special circumstance finding:  “We are not curing a defect in a felony-murder instruction with a special circumstance finding.   We are simply trying to ‘determine from the record on which theory the ensuing general verdict of guilt rested․’  [Citation.]”  (People v. Hernandez, supra, 47 Cal.3d at p. 351, 253 Cal.Rptr. 199, 763 P.2d 1289.)   We may validly follow the same approach here, by using the robbery special circumstance finding to determine that the jury found a robbery occurred, and that the murder occurred in the course of the robbery for purposes of the felony-murder doctrine.   (People v. Garrison, supra, 47 Cal.3d at p. 779, 254 Cal.Rptr. 257, 765 P.2d 419.)   Although appellant attempts to distinguish the authorities we have cited, on the grounds that in appellant's case there was no offense listed in section 189 upon which the felony-murder argument could be based, the robbery special circumstance finding shows the jury found a robbery occurred;  and robbery is listed in section 189.

4.   Appellant suggests that he did not invoke his constitutional right not to testify, and simply refused to do so without invoking the privilege.   We think the context of the record supports a contrary conclusion;  both the trial court and appellant's counsel certainly were under the impression appellant was invoking his right not to testify.   In any event, while a simple refusal to testify may make a third party witness unavailable for purposes of section 240 (see People v. Rojas (1975) 15 Cal.3d 540, 547, 552, 125 Cal.Rptr. 357, 542 P.2d 229;  People v. Sul (1981) 122 Cal.App.3d 355, 362, 175 Cal.Rptr. 893), it would not make a plaintiff or defendant unavailable.  (See § 240, subd. (b).)

5.   The Legislature plainly knows how to create an exception to the hearsay rule when it wishes to do so.  Evidence Code section 1350, added in 1985, allows prior statements of a witness to be introduced at trial by the prosecution as a hearsay exception, where the defendant procured the witness's unavailability by killing the witness.   In our case, however, the Legislature has wisely barred this particular type of hearsay, where the defendant attempts to profit from his own decision to be unavailable.

PETERSON, Associate Justice.

SMITH, Acting P.J., and BENSON, J., concur.

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