PEOPLE v. HOLMES (1993)

A jury convicted defendant Phelps Wayne Holmes of robbery.

At a hearing outside the presence of the jury, a prosecution witness refused to answer questions concerning her involvement with the defendant.   She asserted her Fifth Amendment rights.   The witness was given immunity, but she still refused to testify.   Nevertheless, the trial court allowed the prosecution to question her before the jury about her involvement with defendant, and her being given immunity.   In response to the questions the witness again stated that she refused to answer.

The relevance of the witness's testimony was nil;  the prejudice stemming from the prosecution's questions was overwhelming.   We reverse.

FACTS

Jose Diaz was a victim of a robbery allegedly committed by Holmes.   He testified at the preliminary hearing, but at trial the court determined that he was unavailable as a witness, and allowed his preliminary hearing testimony to be read to the jury.

Diaz testified that as he was walking to Mr. Kwik's, a convenience store, a Black woman approached him and offered him sex for money.   He declined, and then, a Black man approached him and placed a knife to his throat.   The Black woman, speaking Spanish, told Holmes to get Diaz's wallet.   She and Holmes reached into Diaz's front pants pockets and took a 50 cent piece and a little plastic book.   They were unable to take his wallet.

Jesus Gomez, who worked nearby, testified he heard shouts for help.   When he looked over the fence he saw Diaz on the ground fighting with Holmes and a Black woman.   Holmes had his left hand on Diaz's throat and was holding an object in this right hand at Diaz's throat.   Gomez and his brother ran to the scene of the fight.

At some point both the Black woman and Diaz left.   Holmes told Gomez and his brother not to get involved or their family would die.   Gomez and his brother were struggling with Holmes when the police arrived.

Gomez testified that he saw the woman “․ trying to reach into the victim's pockets.”   When Holmes let go of Diaz, Gomez did not see anything in his hand or in the woman's hands.   The police found a knife and a 50 cent piece near the scene of the attack.   Gomez said he had seen Holmes and the same Black woman, together, near Mr. Kwik's almost every day for the previous month.   He identified Holmes as the man who was fighting with Diaz.

Holmes had a different version of the events.   Immediately after his arrest he told the police he had heard a woman yell “rape” and went to assist her.   He said he was then attacked by three Hispanic males.   In a later statement he said two of the Hispanic men showed up when he was trying to get the first one off the woman.   Holmes said one of the two men hit him with a board or stick and knocked his knife from his hand.   He denied knowing the Black woman.   Holmes did not testify at trial.

At a hearing, out of the presence of the jury, the prosecutor called Joyce Lucas, a Black woman, to the witness stand.   At that time she was incarcerated at the California Institute for Women and dressed in jail clothing.   Lucas, represented by appointed counsel, asserted her Fifth Amendment privilege and refused to testify regarding the alleged robbery.   Even after the trial court signed an immunity order under Penal Code section 1324, Lucas, through counsel, continued to refuse to answer any questions.   The trial court found her in contempt.

Holmes objected to Lucas's testimony citing Evidence Code section 352.   The trial court permitted the prosecutor to call Lucas as a witness in front of the jury.   The trial court stated the jury was entitled to know “that the People have attempted to provide this witness and the witness refused to respond.”   The prosecutor refused to accept Holmes' offer to stipulate to Lucas's refusal to testify.   Instead, he called Ms. Lucas, in jail clothes and ankle chains, to the witness stand before the jury.

In the jurors' presence the prosecutor asked Ms. Lucas these questions:  “Q:  Isn't it true that you were with your boyfriend, Mr. Phelps Holmes, the defendant, behind Mr. Kwik's and Juanita's Store on that date and time?  [¶] A:  I refuse to answer that, sir.  [¶] Q:  Is that even though you have immunity?  [¶] A:  I refuse to answer.  [¶] Q:  Isn't it true that you told that to Detective Nieves?  [¶] A:  I refuse to answer, sir.  [¶] Q:  Miss Lucas, do you understand that by being granted immunity that nothing you say today can be held against you?  [¶] MR. WINDOM (DEFENSE COUNSEL):  Asked and answered, your Honor.  [¶] THE COURT:  Overruled.   You can answer.  [¶] THE WITNESS:  Yes, I understand that, right.  [¶] Q:  Well, since you have been given immunity, and you understand that nothing you say today can be used against you, that you can't be punished for anything you say today, then why don't you tell us what you know about what happened behind Mr. Kwik's on May 8th of this year at about 10:00 p.m.?  [¶] MR. WINDOM:  Assumes a fact not in evidence.  [¶] THE COURT:  Well, the fact that it assumes is that she knows something, but the answer to that is because she doesn't know anything.   So I'll over—  [¶] MR. WINDOM:  Well—  [¶] THE COURT:  I'm sorry?  [¶] MR. WINDOM:  The problem I have, your Honor, and would like it on the record, is that the nature of the questions being presented is giving the jury the impression that something indeed occurred and that the response means that her refusal to testify means that it occurred, and I don't want that impression.   Because that is not the fact.  [¶] THE COURT:  All right, let's rephrase the question and to use the phrase ‘if anything.’  [¶] Q:  Miss Lucas, since you understand that you have been given immunity and you understand that you cannot be punished for anything you say today, why won't you tell us what you know, if anything, about what happened behind Mr. Kwik's on May 8th of this year at approximately 10:00 p.m.  [¶] A:  I refuse to answer.”

During closing argument the prosecutor, in discussing the contrasting versions of what occurred, stated:  “․ Conversely, looking at it from the black female or Miss Lucas' point of view, if you were—.”  At this point Holmes' counsel objected on the grounds of prosecutorial misconduct and misstatement of the evidence.   He stated there was no evidence that Miss Lucas was the black female at Mr. Kwik's on May 8, 1991.   The trial court responded:  “The jury will have their own notes and recollection with regard to the evidence, and counsel's comments are always their recollection of the evidence.   The final determination will be made by the jury.   Go ahead.”   The prosecutor went on stating “․ let's just refer to her as the black female.”

Prior to trial the People brought an in limine motion to determine the admissibility of the preliminary hearing testimony of the victim, Jose Diaz.   Diaz was unavailable as a witness because he was residing in Mexico.   His preliminary hearing testimony was read to the jury.

At the preliminary hearing Diaz told one of the district attorney's investigators that he would return to Mexico when his seasonal picking work was finished.   He did not know when that would be.   His employer stated his last work day was May 24, 1991, and his paycheck was issued on May 29, 1991.   Diaz, by telephone, said he believed he returned to Mexico the first week in June.   Holmes was arraigned in superior court on June 5, 1991.

The trial was originally set for July 8, 1991.   Prior and subsequent to that date it was reset and continued on numerous occasions to September 23, 1991.   In attempting to serve Diaz for the original trial date, the People learned Diaz had returned to Mexico.   On June 27, 1991, Diaz agreed in a telephone call to appear for trial but the date was then changed.   He then said he had found employment and would not appear because of the financial hardship.   He would not change his mind even though the district attorney offered to pay for his transportation.   The office of the Immigration and Naturalization Service, and the United States attorney advised the district attorney that treaties between Mexico and the United States did not provide a method to require the attendance of witnesses residing in Mexico for trials in the United States.   The trial court found that Diaz was “unavailable” and his preliminary hearing testimony was admissible.

HOLMES' CONTENTIONS

Holmes contends the prosecutor committed misconduct by questioning the witness, Joyce Lucas, in a fashion which implied the existence of facts extremely harmful to the defense.   The facts the prosecutor attempted to prove through his questions he could not prove, nor had he any reason to believe they could be proved.

Holmes also contends the trial court erred by admitting the preliminary hearing testimony of Diaz pursuant to Evidence Code section 1291(a)(2).   This is because (1) Holmes did not have the same interest and motive to cross-examine Diaz at the post-Proposition 115 preliminary hearing, which he would have had at trial and (2) a significant source of impeachment did not exist until after the preliminary hearing.

DISCUSSION

I

 We agree with Holmes that the court committed prejudicial error by allowing the prosecutor to examine Joyce Lucas before the jury when it was clear she would refuse to testify.   The prosecutor used the occasion to imply the existence of facts which were not proved.

 Defense counsel did not specifically object to the testimony of Ms. Lucas on the ground of prosecutorial misconduct.   He did, however, object pursuant to Evidence Code section 352 pointing out that the prosecutor's tactic to call Ms. Lucas was an attempt to cause the jury to draw improper inferences through his questions.   This was sufficient to apprise the court of the impropriety of this tactic, and to alert the court that it creates overwhelming prejudice balanced against no relevance.

No doubt the prosecutor did not call the county jail as though it were central casting in order to get a female Black witness dressed in jail clothes.   To this extent the prosecutor no doubt acted in good faith.   But that does not legitimize calling her as a witness in order to ask questions that will not be answered.  “Generally, ‘[a] prosecutor is not guilty of misconduct when he questions a witness in accordance with the court's ruling.’  [People v. Rich (1988) 45 Cal.3d 1036, 1088 [248 Cal.Rptr. 510, 755 P.2d 960.]]   Many of these instances are properly termed misconduct, however, because the prosecutors' questions were so obviously improper, they cannot have been asked in good faith.”  (People v. Pitts (1990) 223 Cal.App.3d 606, 733–734, fn. 33, 273 Cal.Rptr. 757.)

“It is improper to ask questions which clearly suggest the existence of facts which would have been harmful to defendant in the absence of a good faith belief that the questions would be answered in the affirmative, or with a belief that the facts could be proved, and a purpose to prove them, if their existence should be denied.  [Citations.]”  (People v. Chojnacky (1973) 8 Cal.3d 759, 766, 106 Cal.Rptr. 106, 505 P.2d 530.)

“Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.  (People v. Johnson (1974) 39 Cal.App.3d 749, 760 [114 Cal.Rptr. 545;]  Bowles v. United States (1970) 439 F.2d 536, 541–542.)   Therefore, ‘it is the better practice for the court to require the exercise of the privilege out of the presence of the jury.’  (People v. Johnson, supra, 39 Cal.App.3d at p. 759.)   We have ‘commend[ed]’ the approach ‘as a means by which to avoid the potentially prejudicial impact of the witness asserting the privilege before the jury.’  (People v. Ford (1988) 45 Cal.3d 431, 441, fn. 6 [247 Cal.Rptr. 121, 754 P.2d 168.]”  (People v. Frierson (1991) 53 Cal.3d 730, 743, 280 Cal.Rptr. 440, 808 P.2d 1197.)

The trial court did that here, but then regrettably took the unnecessary next step by permitting a repeat performance before the jury.   Because Ms. Lucas had refused to testify, she simply could not be a witness in this case.   Nevertheless, the prosecution effectively made her a witness bringing her before the jury in jail clothes and ankle chains.

The jury knew that the woman involved in the robbery was Black.   Ms. Lucas is black.   The prosecutor asks her “Isn't it true that you were with your boyfriend, Mr. Phelps Holmes, the defendant, behind Mr. Kwik's and Juanita's Store on that date and time?”   As Holmes points out, this question created an illusion of evidence that eviscerated the defense.   The prosecutor further reinforces his point by asking the witness, “Isn't it true that you told that to Detective Nieves?”   We agree with Holmes that the impact of this questioning was devastating to the defense particularly without the presence of the victim at trial.

The trial judge permitted Ms. Lucas to be called as a witness by reasoning that the jury is entitled to know about the efforts of the People to provide this witness, and about the witness's refusal to testify.   We are puzzled by this rationale in light of CALJIC No. 1.02 which the court gave the jurors cautioning them not to assume to be true an insinuation suggested by a question asked the witness.

In fact it appears Ms. Lucas was called as a witness so that the jurors could draw the obvious inference that CALJIC No. 1.02 says they may not draw:  she is the black woman in question because she refuses to answer questions concerning Holmes.   The prosecutor strikes home this point through questions that inform the jury that Ms. Lucas was granted immunity.

Just in case the jury did not get the hint, the prosecutor argues that Ms. Lucas was the Black woman at the scene.   The court, then ostensibly tries to minimize the damage by informing the jury that it is to decide the case on its own recollection of the evidence.   Ironically, this may have enhanced, rather than overcome the effect of the prosecutor's remark.   Ms. Lucas' response to the prosecutor's questions, was extremely prejudicial “evidence” against Holmes.   The jury, no doubt, had no trouble recollecting it.

It is true that Gomez said he had seen Holmes and the same Black woman together near Mr. Kwik's almost every day for the previous month.   The jury could obviously use this evidence to reject Holmes' defense.   The prosecution, however, did not have Mr. Gomez identify Ms. Lucas as Holmes' accomplice.   Instead, the prosecution artificially enhanced Gomez's testimony through its leading questions put to Ms. Lucas.

There were conflicting stories as to how the incident occurred.   As the defense points out, the jury had to resolve whether Holmes fought with Diaz in the course of rescuing an unknown female victim from an attack or whether Holmes and some Black woman had acted together to commit the offense.   Through questions to which the prosecutor knew there would not be answers, he resolved the conflict in favor of the prosecution.

 The prosecutor should have known better.   As Holmes points out, People v. Shipe (1975) 49 Cal.App.3d 343, 349–350, 122 Cal.Rptr. 701, tells us that prosecutors may not ask leading questions to create an irrefutable inference that a defendant has committed a crime through those questions.   The prosecutor here did precisely what a prosecutor should never do.   He implied the existence of facts which he did not prove.  (People v. Blackington (1985) 167 Cal.App.3d 1216, 1221–1224, 213 Cal.Rptr. 800;  People v. Lo Cigno (1961) 193 Cal.App.2d 360, 389, 14 Cal.Rptr. 354.)

 As we said in People v. Daggett (1990) 225 Cal.App.3d 751, 759, 275 Cal.Rptr. 287, first citing the American Bar Association, Model Code of Professional Responsibility, EC 7–25, “ ‘[A] lawyer should not by subterfuge put before a jury matters which it cannot properly consider’․  [¶] ‘It is a prosecutor's duty “to see that those accused of crime are afforded a fair trial.”  [Citation.]  “The role of the prosecution far transcends the objective of high scores of conviction;  its function is rather to serve as a public instrument of inquiry and, pursuant to the tenets of the decisions, to expose the facts.”  [Citation.]’ ”

The manner in which the prosecutor used Ms. Lucas as a witness, so polluted and tainted the case that we cannot say it is more probable than not that the jury would have convicted Holmes had it not been exposed to Ms. Lucas' “non-testimony.”   The prosecution had an overwhelming advantage that enabled it to prevail on its point of view as to how the incident occurred.   The court's instructions notwithstanding, it is difficult to see how the jury could avoid drawing the obvious inferences from Ms. Lucas' presence and the questions asked of her.

Under the circumstances here, this prosecution tactic “ ‘․ is of such a character that a harmful result cannot be obviated or cured by any retraction of counsel or instruction of the court.’ ”  (People v. Perry (1972) 7 Cal.3d 756, 790, 103 Cal.Rptr. 161, 499 P.2d 129.)

Even if the defense waived the objection as to prosecutorial misconduct, the objection as to Evidence Code section 352 should have been sustained because Ms. Lucas' “testimony” was not relevant.   As Holmes aptly points out, the prejudice was devastating.

 The prosecution should rely on more than the safety net of harmless error to achieve a conviction.   Although it is possible the jury would have convicted without the prosecution's tactic, the error was not harmless.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

II

 We discuss Holmes' remaining contention to offer guidance on retrial.   Holmes claims there is a violation of his constitutional right to confront and cross-examine the alleged victim.   This is because the nature of preliminary hearings have changed due to the passage of Proposition 115.   He claims that because there is no longer the right to fully cross-examine witnesses at a preliminary hearing, testimony elicited at such a hearing should not be admitted at trial under Evidence Code section 1291.

The United States Supreme Court has established that a defendant's Sixth Amendment right to confrontation is a fundamental right, applicable to the states through the Fourteenth Amendment.  (Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.)   The California Constitution also provides a specific guarantee of the right to confrontation:  “The defendant in a criminal cause has the right ․ to be confronted with the witnesses against the defendant.”  (Cal. Const., art. I, § 15.)   A similar guarantee is codified in section 686, subdivision 3, of the Penal Code, which provides that in a criminal action the defendant is entitled to produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court.

These provisions do not absolutely prohibit the use of hearsay testimony against a defendant in a criminal trial.

Our Supreme Court in People v. Stritzinger (1983) 34 Cal.3d 505, 515, 194 Cal.Rptr. 431, 668 P.2d 738 stated:  “In California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930], the United States Supreme Court defined the three-fold purpose of the confrontation requirement:  (1) to insure reliability by means of the oath, (2) to expose the witness to the probe of cross-examination, and (3) to permit the trier of fact to weigh the demeanor of the witness.  (Id. at p. 158 [26 L.Ed.2d at p. 497, 90 S.Ct. at p. 1935];  see also People v. Green (1971) 3 Cal.3d 981, 989 [92 Cal.Rptr. 494, 479 P.2d 998.] )   It is well settled, of course, that the right of confrontation is not absolute.   In Barber v. Page (1968) 390 U.S. 719 [20 L.Ed.2d 255 [88 S.Ct. 1318] ․], the high court recognized that ‘there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.’  (Id. at p. 722 [20 L.Ed.2d at p. 258, 88 S.Ct. at p. 1320];  accord, People v. Enriquez (1977) 19 Cal.3d 221, 235 [137 Cal.Rptr. 171, 561 P.2d 261]․)  The California Evidence Code is consistent with this formulation.   Section 1291 provides in relevant part:  ‘(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:  ․ [¶] (2) the party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’ ”

Preliminary hearings have changed under Proposition 115.  Penal Code section 866 subdivision (b) now states:  “It is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony.   The examination shall not be used for purposes of discovery.”

Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1081, 2 Cal.Rptr.2d 160, 820 P.2d 262, decided after this trial permits the use of hearsay at preliminary hearings.  “The foregoing statutory pronouncement [§ 866] marks a sharp contrast to this court's previous expansive concept of the preliminary hearing as a discovery and trial preparation device, allowing counsel the opportunity to ‘fashion’ their impeachment tools for use in cross-examination at trial, to preserve testimony favorable to the defense, and to provide the defense ‘with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial.’  (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588 [150 Cal.Rptr. 435, 586 P.2d 916].)   Significantly, the utility of the preliminary hearing as a discovery tool has been cited in support of the minority position that the use of hearsay at such hearings violates the defendant's confrontation rights.  (See, e.g., State v. Anderson (Utah 1980) 612 P.2d 778, 784–786 [relying on confrontation clause of Utah Const.].)”

Nevertheless, at this preliminary hearing, Holmes' counsel thoroughly cross-examined Diaz.   He had the opportunity to test his credibility, and his version of the facts.  (See Whitman v. Superior Court, supra, 54 Cal.3d 1063, 1081–1082, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   In these circumstances it was not error to permit evidence of the former testimony.

 Holmes claims, however, that evidence acquired after the preliminary hearing affected Diaz's credibility.   Diaz's refusal to appear even with his expenses paid is significant evidence touching on his credibility which should have foreclosed the use of his former testimony.   We are aware of no authority for this proposition, and apparently neither is Holmes.   The motive for cross-examination at the preliminary hearing may differ from the motive for cross-examination at the trial.  Evidence Code section 1291 subdivision (a)(2) only requires that the motives be similar, not identical.  (People v. Zapien (1993) 4 Cal.4th 929, 975, 17 Cal.Rptr.2d 122, 846 P.2d 704.)

The judgment is reversed.

I respectfully dissent.   While the instant trial was not perfect, it was fair.   In my opinion there was no miscarriage of justice, reversal is not appropriate, and appellant will again be convicted upon retrial.

The facts are fairly stated in the majority opinion.   However, three of them must be emphasized.   First, Jesus Gomez testified that he had seen appellant with the same Black woman, together, near the convenience store, almost every day for the previous month.   Second, the same Black woman was the victim of a sexual assault according to appellant's theory of defense.   Third, appellant, in his statement to the police, repeatedly and adamantly denied knowing the same Black woman.   Thus, notwithstanding the trial court's allowing the prosecutor to question Joyce Lucas in front of the jury, appellant's theory of defense was not “going to fly,” did not “fly,” and is not “going to fly” upon retrial.

The majority premise reversal on the prosecutor's direct examination of Joyce Lucas before the jury after it was clear she would refuse to testify.   Appellant now contends:  “The prosecutor committed misconduct by questioning Joyce Lucas in a fashion which implied the existence of devastating facts which the prosecutor neither proved through admissible evidence nor had reason to believe could be proved.”   He further contends that this “․ questioning violated appellant's right to confront and cross-examine the witnesses against him.”   Neither of these objections was timely made below.   These objections are not arcane and, in fact, defense counsel objected on the basis of prosecutorial misconduct during final argument.   These objections are deemed waived.  (Evid.Code, § 353.) ¹

“An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide.  (Citations.)”  (People v. Scott (1978) 21 Cal.3d 284, 290, 145 Cal.Rptr. 876, 578 P.2d 123.)   I cannot say that the objections tendered fairly apprised the trial court that a charge of prosecutorial misconduct was being made.   The Evidence Code section 352 objection and the speaking objection were not “clear and specific.”   The confrontation and misconduct theories are not preserved for appeal.  “[A] long established rule places the burden on the defendant to make the objection in a particular form (assignment of misconduct)․”  (Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 3290, p. 4071;  see People v. Rowland (1992) 4 Cal.4th 238, 274, 14 Cal.Rptr.2d 377, 841 P.2d 897.)

As stated in People v. Chojnacky (1973) 8 Cal.3d 759, 765, 106 Cal.Rptr. 106, 505 P.2d 530.  “Generally misconduct of the prosecution will not be ground for reversal of a judgment ․ where no objection was made.”  “The term ‘misconduct’ implies ‘a dishonest act or an attempt [by an attorney] to persuade the court or jury, by use of deceptive or reprehensible methods.’   (People v. Beivelman, 70 Cal.2d 60, 75 [73 Cal.Rptr. 521, 447 P.2d 913]․)  It is improper to ask questions which clearly suggest the existence of facts which would have been harmful to defendant in the absence of a good faith belief that the questions would be answered in the affirmative, or with a belief that the facts could be proved, and a purpose to prove them, if their existence should be denied․”  (Id. 8 Cal.3d at p. 766, 106 Cal.Rptr. 106, 505 P.2d 530.)

Here, not making the appropriate objection and not assigning misconduct foreclosed the prosecutor from demonstrating a good faith belief in the existence of facts sought to be elicited.  (People v. Price (1991) 1 Cal.4th 324, 481, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   Ms. Lucas' refusal to answer questions rendered her unavailable as a witness.  (Evid.Code, § 240;  In re Weber (1974) 11 Cal.3d 703, 721, 114 Cal.Rptr. 429, 523 P.2d 229.)   With an appropriate foundation, certain of her extrajudicial statements to Detective Nieves may have been admissible at appellant's trial as declarations against interest with an appropriate limiting instruction.  (Evid.Code, § 1230.)

Appellant speculates when he says “the facts the prosecutor attempted to prove through his questions [to Ms. Lucas] he could not prove, nor had he any reason to believe they could be proved.”  (Ante, maj. op. p. 744)  When reasonable inferences are drawn, it appears that the prosecutor could have proven the relationship between Lucas and appellant and that he had a good faith belief that he could do so.   There being no showing to the contrary, a reasonable inference is that the prosecutor was in possession of a police report detailing Ms. Lucas' participation in the robbery with appellant.   It may well be that the prosecutor simply neglected to connect Ms. Lucas to the robbery.

The first two questions put to Ms. Lucas in the jury's presence (ante, maj. op. pp. 742–743), and Mr. Gomez's testimony show a basis for the prosecutor's good faith belief that Ms. Lucas was known to appellant at the time of the subject offense and was present at the market on the night in question.   The majority recognize that the prosecutor had some basis to believe Lucas had a connection to the robbery.   She did not come from “central casting.”  (Ante, maj. Op. p. 744.)

Our Supreme Court has addressed calling a witness before the jury to have him or her invoke the privilege against self-incrimination.  “Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.  (People v. Johnson (1974) 39 Cal.App.3d 749, 760 [114 Cal.Rptr. 545;]  ․ Bowles v. United States (1970) 439 F.2d 536, 541–542․)  Therefore, ‘it is the better practice for the court to require the exercise of the privilege out of the presence of the jury.’  (People v. Johnson, supra, 39 Cal.App.3d at p. 759 [114 Cal.Rptr.3d 749.] )   We have ‘commend[ed]’ the approach ‘as a means by which to avoid the potentially prejudicial impact of the witness asserting the privilege before the jury.’  (People v. Ford (1988) 45 Cal.3d 431, 441, fn. 6 [247 Cal.Rptr. 121, 754 P.2d 168]․”  (People v. Frierson (1991) 53 Cal.3d 730, 743, 280 Cal.Rptr. 440, 808 P.2d 1197.)

It was clear from the hearing out of the jurors presence that the witness would not answer the prosecutor's questions.   The trial court should not have allowed the prosecutor to examine Ms. Lucas in excess of the reason it articulated.   However, the prosecutor got carried away and asked other questions.   Defense counsel made no further objection.   Nor did he assign prosecutorial misconduct.  (See maj. op. pp. 742–743.)   Had he done so, perhaps a different trial court order would have been made.   Even if the same ruling would have been made, perhaps we would have a complete record and intelligent appellate review would be enhanced.   In essence the majority has turned the “better practice” suggestion (People v. Frierson, supra, 53 Cal.3d at p. 743, 280 Cal.Rptr. 440, 808 P.2d 1197) into an absolute rule.

In any event, appellant was not prejudiced since the jury was given CALJIC 1.02 which, in pertinent part, provides:  “Do not assume to be true an insinuation suggested by a question asked a witness.   A question is not evidence and may be considered only as it enables you to understand the answer.”   The jury is presumed to have followed the trial court's instructions.  (People v. Frank (1990) 51 Cal.3d 718, 728, 274 Cal.Rptr. 372, 798 P.2d 1215.)   In addition, appellant could have requested CALJIC 2.25 which would have informed the jury that no adverse inference could be drawn from the witness' refusal to answer.  (Evid.Code, § 913.) ²  No such request was made.   Appellant's counsel argued extensively that Ms. Lucas' refusal to testify proved nothing.   He even cited the aforementioned text of CALJIC 1.02.

The prosecutor's reference that Ms. Lucas was the Black woman at the scene during argument did not result in a miscarriage of justice.   The reference was brief and the trial court admonished the jury to decide the case on its own recollection of the evidence.   This was sufficient to overcome the effect of the prosecutor's remark.   The jury's task was to determine whether to credit Diaz' preliminary hearing testimony and Gomez's testimony or appellant's extrajudicial exonerating explanation.   The key fact was not whether Ms. Lucas was, in fact, the Black woman present at the convenience store on the day of the robbery, but whether appellant knew the Black woman prior thereto.   Mr. Gomez testified that appellant and the alleged “rape victim” were together near the convenience store every day for the month prior to the robbery.   That was sufficient for the jury to reject appellant's defense and more than sufficient for the determination that it is not reasonably probable the verdict would have been more favorable in the absence of the prosecutor's reference.   (People v. Sandoval (1992) 4 Cal.4th 155, 184, 14 Cal.Rptr.2d 342, 841 P.2d 862;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

I would affirm the judgment.

FOOTNOTES

1.   Evidence Code section 353 states:  “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:  [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion;  and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”

2.   Evidence Code section 913 states:  “(a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.  [¶] (b) The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”  (Emphasis added.)

GILBERT, Associate Justice.

STONE, P.J., concurs.