PEOPLE v. SIMMERMAN (1990)

A jury convicted appellant of mayhem (Pen.Code, § 203) and corporal injury to a cohabitant (Pen.Code, § 273.5, subd. (a)).   The court suspended proceedings and placed appellant on three years probation conditioned upon, among other things, his spending 120 days in county jail and being subject to law enforcement search without a warrant.

We find no Garner error (People v. Garner (1989) 207 Cal.App.3d 935, mod. 207 Cal.App.3d 1586a, 255 Cal.Rptr. 257), no instructional error, no search condition error, and no prejudicial juror communication by the bailiff.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

There being no insufficiency of evidence claim, we briefly summarize the evidence with a perspective favoring the judgment.  (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 299, 93 Cal.Rptr. 61;  People v. Woodberry (1970) 10 Cal.App.3d 695, 699, 89 Cal.Rptr. 330.)

Appellant and his girlfriend Kelly Kline (victim) had lived together for about four years.   On December 21, 1987, around 7:30 p.m., appellant picked up Kelly from her workplace and together they went to a bar owned by her parents.   For the next several hours they remained at the bar, drinking beer.   Around 11 p.m. they got into a heated argument when Kelly followed Jon, a frequent patron of the bar, to or into the restroom.   Kelly then left the bar.   Appellant remained, had another beer or two, left around 11:30 p.m., got home about 15 minutes later, and went to bed.   Kelly arrived about 45 minutes later, undressed, and also went to bed.   An argument started.   Appellant, standing by Kelly's side of the bed, tried to pull the covers off her and said “Why don't you love me?”   At some point appellant held Kelly by her shoulders and bit off a part of her lower lip, about one inch wide and three quarters of an inch deep.

They dressed and appellant drove Kelly to a nearby hospital.   Kelly told the emergency physician, Dr. Palmer, that her lip had been bitten off but refused to say by whom.   Dr. Palmer examined Kelly and saw no other injuries or bruises to her face.

LAPD Officer Hovahanessian saw and talked to both Kelly and appellant at the hospital.   He observed that appellant had blood on his face, around his mouth, and on his teeth.

Later that morning Kelly was taken to the USC County Medical Center and treated by Dr. Pinczower, a head and neck surgeon.   She told him, and later separately told her mother and father, that appellant bit off her lip.   It was Dr. Pinczower's opinion that Kelly could not have bitten off her own lip.

At the USC County Medical Center, Kelly's father confronted appellant stating, “My daughter said that you bit her;  is that correct?”   Appellant replied “Yes, sir.”   Kelly's father then took appellant to the hospital safety office.   Kelly's father first talked to the officer there, telling him what appellant had done to his daughter.   When the officer beckoned appellant into the office appellant said, “Yes, I did it.   I am sorry.”

Appellant was arrested later that morning and while in the transporting patrol car repeatedly stated, “[O]h my God, I can't believe this happened.   I really fucked up this time.   I cannot believe I bit my girlfriend's lip off.”

The defense was that Kelly accidentally bit off her own lip.

DISCUSSION

Garner error

Appellant contends the trial court's instruction, that in assessing the victim's credibility and the defendant's guilt or innocence, the jury should disregard the victim's assertion of her privilege against self-incrimination, was error (CALJIC 2.25).   Appellant also contends the court should have conditioned the admissibility of the victim's preliminary hearing testimony upon a prosecution request for victim immunity.

These contentions arise from the following circumstances.   The victim, Kelly Kline, gave many different and contradictory accounts of her injury.   At the nearby hospital to which she was first taken she refused to tell the attending doctor who had bitten off her lip.   But while at that hospital she told a police officer that on her way home from her parents' bar four female Hispanics had challenged her to a fight and one got on top of her and bit off her lip.

Later, at the USC County Medical Center, she first told her parents a boy and three female Hispanics attacked her and one of them bit off her lip.   But when she was alone with her mother the victim said “Joe [appellant] did it.”   She then told her father and the treating doctor that it was appellant who had bitten her lip.

About five weeks later, on February 2, 1988, at appellant's preliminary hearing, the victim testified in detail about her argument with appellant, how he had tried to pull the covers off her, how he had grasped her while she was in bed, and how he had bitten off her lip.

Two days later, however, on February 4, 1988, the victim telephoned Detective Santor, the investigating officer, and said she had lied at the preliminary hearing and in fact she had bitten her lip off when appellant pushed her and she fell.

A month later, on March 2, 1988, the victim telephoned Deputy District Attorney Phil Rabichow (not the trial prosecutor), said she didn't want to prosecute appellant, that she had perjured herself at the preliminary hearing, and that her lip injury occurred when she fell and “she wasn't sure how it happened.”

The victim repeated this recantation shortly before trial during an audio taped meeting with Detective Santor and the trial prosecutor.¹

Although, of course, both the prosecutor and appellant's trial counsel knew of the victim's contradictory accounts and that she had recanted her preliminary examination testimony, the jury and the trial court were not forewarned.²

During his case in chief the prosecutor called the victim.   On direct examination, she testified that her lip injury occurred when she fell.   She also admitted, still on direct examination, all the other accounts she had given, including her preliminary hearing testimony that appellant had bitten off her lip.   After 25 transcript pages of her testimony, but before direct examination had concluded, a recess was taken.

During a discussion with counsel the trial court expressed its concern that the victim might be incriminating herself.   The trial court then appointed counsel for the victim.   Following a consultation with her appointed attorney the victim refused to further answer any questions, invoking her privilege against self-incrimination.   The court sustained her privilege and then struck her testimony.

The prosecutor was then permitted to have the victim's preliminary hearing testimony read to the jury.   Both sides were freely allowed to impeach and rehabilitate that testimony.

In connection with the victim's assertion of her privilege against self-incrimination the court instructed the jury:  “When a witness refuses to testify as to any matter, basing [her] refusal on the constitutional privilege against self-incrimination, you are not to draw from that fact any inference as to the credibility of the witness or as to the guilt or innocence of the defendant.”  (CALJIC 2.25.)

 The first ruling of the trial court, a correct one, was to sustain the victim's assertion of her privilege against self-incrimination.  “The test is ‘whether any direct answer to a proposed question has a tendency to criminate the witness․   The court properly takes into consideration all of the circumstances of the case in determining whether there is a real danger that a direct answer to a question may incriminate.”  (People v. Lawrence (1959) 168 Cal.App.2d 510, 516, 336 P.2d 189.   Internal quotation marks deleted.)   The trial court was entitled to find that the victim's answers “ ‘might furnish a link in the chain by which a conviction” (ibid.) of perjury, filing a false report (Pen.Code, § 148.5), conspiracy, or other crimes might result.   Appellant did not at trial and does not on appeal claim otherwise.

 Secondly, the trial court struck the victim's partial direct testimony.   This ruling, based upon the victim's refusal to further answer questions, was correct.  (People v. Barthel (1965) 231 Cal.App.2d 827, 834, 42 Cal.Rptr. 290;  see also People v. Kadison (1966) 243 Cal.App.2d 162, 167–169, 52 Cal.Rptr. 114.)   Appellant did not at trial and does not on appeal claim otherwise.

 Thirdly, the trial court admitted the victim's former testimony, i.e., her preliminary hearing testimony.   That ruling also was correct.   The victim having been “[e]xempted ․ on the ground of privilege from testifying” became “unavailable as a witness.”  (Evid.Code, § 240.)   Since appellant was a party at the preliminary hearing “and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he [had] at the [trial]” (Evid.Code, § 1291) the former testimony exception to the hearsay rule applied.

Although appellant did object at the trial to the admissibility of this former testimony on denial of confrontation and cross-examination grounds, the objection was properly overruled.  (People v. Malone (1988) 47 Cal.3d 1, 23, 252 Cal.Rptr. 525, 762 P.2d 1249;  People v. Hovey (1988) 44 Cal.3d 543, 562, 564, 244 Cal.Rptr. 121, 749 P.2d 776;  People v. Brock (1985) 38 Cal.3d 180, 189, 211 Cal.Rptr. 122, 695 P.2d 209;  People v. Enriquez (1977) 19 Cal.3d 221, 235, 137 Cal.Rptr. 171, 561 P.2d 261;  People v. Ogen (1985) 168 Cal.App.3d 611, 616–617, 215 Cal.Rptr. 16 [former testimony from a different but related case properly admitted] ).

 Appellant does not, on appeal, renew this objection.   Rather, appellant argues the trial court erred by not conditioning the admissibility of the former testimony upon a prosecution request for victim immunity.   Appellant's sole authority is People v. Garner, supra, 207 Cal.App.3d 935, 255 Cal.Rptr. 257.  Garner stated the “preferable approach” is for “the trial court to condition the People's request to introduce” the recanted testimony “upon its granting [the witness] immunity from prosecution pursuant to Penal Code section 1324.” ³  (Id. at p. 941, 255 Cal.Rptr. 257.)

Garner acknowledges that it is the “exclusive ․ prerogative” of the district attorney to request witness immunity.  (Id. at p. 942, 255 Cal.Rptr. 257.   See, e.g., People v. Jackson (1986) 178 Cal.App.3d 694, 700, 224 Cal.Rptr. 37;  People v. Estrada (1986) 176 Cal.App.3d 410, 418, 221 Cal.Rptr. 922;  People v. Martin (1983) 150 Cal.App.3d 148, 161–162, 197 Cal.Rptr. 655;  People v. DeFreitas (1983) 140 Cal.App.3d 835, 189 Cal.Rptr. 814;  People v. Sutter (1982) 134 Cal.App.3d 806, 813, 184 Cal.Rptr. 829.)   Garner does not state that absent such a request the trial court has a sua sponte duty to conditionally require such a request.   In the instant case not only did the district attorney make no immunity request but the subject of immunity was never mentioned.   Appellant may not now complain the trial court failed to do that which it was not requested to do.  (Evid.Code, § 353.)   Appellant having waived this issue, we have no need to fully consider the merits of Garner 's “preferable approach.” ⁴

 Although appellant made no objection to the court's giving CALJIC 2.25, we may consider his contention it was error for the trial court to do so.  (Pen.Code, § 1469.)   Again appellant's sole authority is People v. Garner.

In Garner, as in the instant case, the trial court instructed the jury, “When a witness refuses to testify as to any matter, basing his refusal on the constitutional privilege against self-incrimination, you are not to draw from that fact any inference as to the credibility of the witness, or as to the guilt of the defendant.”  (People v. Garner, supra, 207 Cal.App.3d 935, 938, 255 Cal.Rptr. 257.)

As to this instruction Garner stated, “While this CALJIC No. 2.25 advisement is quite appropriate under ordinary circumstances where the witness fears his own potential prosecution for a nontestimonial crime, it is entirely unwarranted in the present unique context.   That is to say, when a witness refuses to respond to relevant questioning upon the express averment that to do so would reveal the falsity of his earlier testimony, it is eminently reasonable and proper for the jury to draw an unfavorable inference therefrom regarding his credibility.   In fact, since a witness's intention to commit future perjury could not possibly serve to sustain an invocation of the privilege, only two truly rational inferences are possible, (1) his earlier testimony was, indeed, false, or (2) he is currently lying concerning his reason for refusing to testify.

“Further, where the witness's earlier avowedly false testimony provides a basis for determining the accused's guilt, the jury ought properly to be instructed that it should, rather than it should not, draw all appropriate inferences regarding the defendant's actual guilt or innocence from the witness's refusal to speak.”  (Id. at pp. 938–939, 255 Cal.Rptr. 257.)

We disagree.  Evidence Code section 913, not cited by or discussed in Garner, provides:  “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.”

This section contains no exception for what Garner characterizes as a “unique context.”   Its mandate is clear, unequivocal, and comprehensive:  “the trier of fact may not draw any inference [because of the exercise of the privilege] as to the credibility of the witness or as to any matter at issue in the proceeding.”   Further, at least with respect to the self-incrimination privilege, Evidence Code section 913 only provides what the constitution commands.  (Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106;  People v. Bernal (1967) 254 Cal.App.2d 283, 62 Cal.Rptr. 96.)

The trial court's CALJIC 2.25 instruction was proper.

Consent to search probation condition

 Appellant contends the trial court erred in imposing a consent to search condition upon its grant of probation.  “The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.  (Pen.Code, § 1203 et seq.)   A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted. (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality․’  (People v. Dominguez (1967) 256 Cal.App.2d 623, 627 [64 Cal.Rptr. 290].)  Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”  (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.)

Clearly, if the record only showed that appellant bit off the victim's lip the search condition would not satisfy the “reasonably related” criterion of Lent.  (People v. Kay (1973) 36 Cal.App.3d 759, 762, 111 Cal.Rptr. 894.)   But the record shows, and the trial court was properly concerned about, far more.   Appellant testified to drinking 8–10 beers on the evening of the offense and to routinely drinking a six-pack on weekends.   At the probation and sentencing hearing the trial court referred to this testimony.

We find that the consent to search condition was reasonably related to the circumstances of the offense and also reasonably related to such other validly imposed conditions as not to drink any alcoholic beverage, submit to periodic anti-alcohol tests, and to receive alcohol treatment.  (See People v. Mason (1971) 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630.)

The bailiff's communication to the jury

 Trial counsel for appellant, in a telephone conversation with the court clerk, was apparently told that “the jury asked [the bailiff] what would happen if they were unable to reach a verdict․ [and] that the bailiff told the jury that they were to try again, and that it would be at least a few more days.”

Appellant contends, based solely upon this representation by his trial counsel,⁵ that this communication by the bailiff constituted error.

Assuming such communication occurred and that it violated Penal Code sections 1128 and 1138, we find no prejudice.  “A conversation between a juror and an officer of the court is not misconduct per se.   There must be prejudice.”  (People v. Martinez (1968) 264 Cal.App.2d 906, 912, 70 Cal.Rptr. 918.)

As the trial court observed, “the jury hasn't come back with any decision that they are deadlocked.”   The record fails to show either that the jury was forced to deliberate longer than they desired to or that they were forced to hurry their deliberations.

If there was bailiff error it was without consequence.

Withdrawal of CALJIC 17.03

 During jury deliberations, the jury brought to the trial court's attention it had been given contradictory instructions.   The court had instructed them they could convict appellant of both counts (CALJIC No. 17.02) and that they could not convict appellant of both counts (CALJIC No. 17.03).⁶  The trial court then withdrew the inappropriate instruction, CALJIC No. 17.03, and repeated and clarified the correct one, CALJIC No. 17.02.

Appellant contends this instructional confusion was error.

Undoubtedly the jury was initially confused by the contradictory instructions.   But the confusion was eliminated by juror perceptiveness and trial court clarification.   Following the trial court's explanation and clarification the jury resumed their deliberations.   There is nothing in the record which suggests the jury failed to understand the trial court's clarification or that the earlier confusion had any lingering consequence.

We find no prejudicial error.

DISPOSITION

The judgment is affirmed.

I concur in the result as I find the errors contained in the case to be harmless.   However, contrary to the holding of the majority, I believe this case contained Garner error.  (People v. Garner (1989) 207 Cal.App.3d 935, 255 Cal.Rptr. 257.)

The trial court should have conditioned the admissibility of the preliminary hearing testimony upon a prosecution request for immunity pursuant to Garner 's “preferable approach.”  (Garner at p. 941, 255 Cal.Rptr. 257.)

The majority contends there was no request for immunity.   In fact, the record reflects counsel for appellant argued the appropriate remedy would be for the court to require the district attorney to grant Ms. Kline immunity or to suffer dismissal of this action.   Alternatively, defense requests the court confer judicial use immunity upon Ms. Kline.   This argument was made in a memorandum of points and authorities in support of a motion to dismiss which was filed after Ms. Kline had been on the stand, appointed an attorney and declared she would thereafter invoke the privilege, but before the preliminary hearing testimony was read before the jury.

Nonetheless, I would find the failure to immunize this witness to be harmless.   In this case other witnesses implicated the defendant.   In Garner the only evidence came from one witness.   That witness admitted to falsely identifying the defendant in order to cause problems for a rival gang.  (Garner at p. 938, 255 Cal.Rptr. 257.)   In addition, the preliminary hearing testimony in this case contained a description of one of the victim's false stories.   The jury as the ultimate trier of fact had enough evidence before it to weigh the inconsistencies and the credibility of the witnesses.

Moreover, in the instant case there was cross-examination of the preliminary hearing testimony by the appellant's own counsel who had the same motive and interests as he had at trial.  (Evid.Code, § 1291.)  Garner is silent as to whether defendant's counsel was present to cross-examine the witness at the preliminary hearing.

FOOTNOTES

1.   The tape recording was played to the jury and both the tape and a tape transcript were admitted as exhibits.

2.   Before the commencement of the People's case in chief, both sides made an opening statement.   Although neither statement has been transcribed as part of this record, apparently neither adverted to the victim's inconsistent statements because shortly after the victim began her testimony, disclosing the inconsistencies, the trial court, during a recess, stated, “I am not sure what is going on here.”

3.   Penal Code section 1324 empowers the superior court to grant immunity to a witness in certain circumstances “if the district attorney [so] ․ requests․”  (Emphasis added.)

4.   The only supporting authority cited by Garner is a memorandum opinion from New York, People v. Priester (1983) 98 App.Div.2d 820, 470 N.Y.S.2d 478, distinguishable on several grounds:  the witness's direct examination was not stricken and apparently the jury was not informed of the witness's inconsistent statements.  (For a description of the disarray of New York law in this area see Note, Defense Witness Immunity in New York, 71 Cornell L.R. 890 (1986).)   See also People v. Maxwell (1979) 94 Cal.App.3d 562, 578, fn. 11, 156 Cal.Rptr. 630.

5.   Neither the bailiff nor any juror was questioned.

6.   The court only read 17.02.   But both 17.02 and 17.03 were included among the written instructions provided to the jury.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.