People v. Ford

• Decision Date: 19 May 1988
• Citation: 247 Cal.Rptr. 121,45 Cal.3d 431,754 P.2d 168
• Court: California Supreme Court
• Parties: , 754 P.2d 168, 76 A.L.R.4th 785 The PEOPLE, Plaintiff and Appellant, v. Eric FORD, Defendant and Respondent. Crim. 25361.

Page 121

247 Cal.Rptr. 121

45 Cal.3d 431, 754 P.2d 168, 76 A.L.R.4th 785

The PEOPLE, Plaintiff and Appellant, v. Eric FORD, Defendant and Respondent.

Crim. 25361.

Supreme Court of California,

In Bank.

May 19, 1988.

Rehearing Denied June 30, 1988.

[754 P.2d 170] John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., W. Scott Thorpe, Eddie T. Keller and Shirley A. Nelson, Deputy Attys. Gen., for plaintiff and appellant

Catherine Aragon, under appointment by the Supreme Court, for defendant and respondent.

EAGLESON, Justice.

Subdivision (a) of Evidence Code section 913 states: "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." ¹

In this case we consider whether that statutory proscription of comment on the exercise of a privilege, or any other statute, constitutional provision, or rule precludes comment by the prosecutor on defendant's failure to call his former codefendants as witnesses to support his alibi defense. We consider, in particular, whether, in the absence of an actual exercise of privilege by an otherwise available potential witness, comment is precluded because the witness should be deemed to be "unavailable."

The privilege in issue here is the privilege against self-incrimination. A jury convicted defendant of first degree burglary. (Pen.Code, § 459.) The trial court then granted defendant's motion for new trial, concluding that the prosecution's comment on defendant's failure to call his former codefendants to support his testimony was prejudicial misconduct. On appeal by the People taken pursuant to Penal Code section 1238, subdivision (a)(3), the Court of Appeal disagreed, reversed the order granting a new trial, and remanded the matter with instructions to deny the motion and impose sentence.

We conclude that a witness who has not exercised his privilege against self-incrimination is not an "unavailable" witness. Absent a stipulation that the witness would validly assert the privilege comment is permissible. Because defendant did not call the witnesses and the trial court did not determine that they could exercise their privilege against self-incrimination, the prosecutor's comment was proper. Therefore, we shall affirm the judgment of the Court of Appeal.

I

Defendant Ford, and his alleged accomplices Paul Bridges, Thomas Cooper, and Napoleon Elder were charged with burglary. Before defendant came to trial, Cooper and Bridges had been convicted, on their pleas of guilty, of being accessories to a felony (Pen.Code, § 32), but had not yet been sentenced. Elder, whose trial had been severed, had not been tried. ² Therefore, each could have exercised the privilege against self-incrimination had he been called by defendant as a witness at the trial of defendant if answering the questions put to him could possibly have had a tendency About 10:15 a.m., on April 11, 1984, Christeen Martinez, was visiting her mother-in-law, Irene Martinez. Christeen observed defendant and a Black man conversing with an Hispanic man seated in a rusty green car with a white top parked across the street from the Martinez home. She noticed the three men frequently glance up and down the street as they talked. After approximately 10 minutes they drove away. Shortly thereafter, Christeen and Irene went to the nearby home of Shirley Brushia Williams, described the men and the automobile, and told her to "keep an eye on the street."

                to incriminate the witness.  (Cal. Const., art.  I, § 15;  § 940;  People v. Kizzee (1979) 94 Cal.App.3d 927, 938-939, 156 [754 P.2d 171] Cal.Rptr. 784.)   At that trial the following evidence was presented
                

The next day, at approximately 10 a.m., while driving home Shirley noticed a White man and a Black man walking down the street who fit the description provided by Christeen and Irene. ³ Shirley continued down the street, parked in a cul-de-sac, and waited for the men to walk toward her. As she waited she observed a Black man and another man driving in a rusty green car with a white top, but did not notice the White man and the Black man she had observed earlier. Her suspicions aroused, Shirley returned home and called the sheriff's office. Waiting for the police to arrive, Shirley, Irene Martinez, Patricia Blair, and several other neighbors huddled on the sidewalk and within moments observed the green car make two slow passes. Once the car was out of sight the women returned to their homes. While peering out toward the street Patricia Blair observed defendant and a Black man emerge from the yard of a nearby house at 5025 Springfield Way, proceed down Springfield and eventually stop near the green car. ⁴ Defendant and the Black man were near the green car when Officer Carlson arrived on the scene and began to question them.

While the men were being questioned Patricia Blair approached the home located at 5025 Springfield, opened an unlocked gate, looked through a nearby window, and observed a stereo and other items stacked in a pile. She promptly informed Officer Carlson of her discovery. After learning that all four men had been seen in the area and that defendant and the Black man had been seen leaving the property at 5025 Springfield, Carson arrested defendant, Bridges, Cooper and Elder.

Linda Jo Klement, the owner of the home located at 5025 Springfield, testified that several of the rooms had been ransacked and her stereo, clock radio, television, and several other items were either stacked or in pillow cases near the front door. She also noticed the front door was unlocked, the screen removed from a kitchen window, and the window was opened much wider than it had been when she left home that morning.

Defendant also testified. He denied any involvement in the burglary. He stated that after spending the morning at the apartment of his girlfriend, Jennifer Pace, he went to the home of Thomas Cooper, arriving there before 11 a.m., on April 11, 1984. Before leaving the Pace apartment he had seen Napoleon Elder at some time between 7:30 and 9 a.m. when Elder came to the door to ask if defendant wanted to run. Defendant had declined. He went to Cooper's house because he and Cooper had been looking for jobs and Cooper had a newspaper. He spent the day of April 11 at Cooper's house where he went through the newspaper looking for jobs, lifted weights, and scraped paint off his car. Defendant claimed he and Cooper left the house at one point to visit an acquaintance Defendant described his whereabouts on April 12, 1984, as follows: Approximately 9 a.m., he arrived at Thomas Cooper's house, having again come from the apartment of Jennifer Pace. Napoleon Elder's girlfriend lived in the apartment across from that of Pace, but defendant had not seen Elder there that morning. Approximately 9:30 a.m., Paul Bridges and Napoleon Elder arrived at Cooper's house in Elder's green Ford. Defendant did not know Bridges, but Elder had been on the football team with defendant at American River College. All four men intended to apply for a job that was to be vacated by another friend of defendant and Cooper, and after that to apply for jobs defendant had marked in the newspaper. Shortly thereafter Bridges and Cooper left to put gasoline in Elder's car. Some 15 minutes later Elder, who was irritated at how long Cooper and Bridges were taking, departed. Defendant left shortly thereafter hoping to find Elder, and did so. As defendant joined Cooper and Bridges who were sitting in the front seat and Elder who was standing beside the car, Officer Carlson arrived.

but otherwise remained at Cooper's most of the day.

Defendant's evidence regarding his whereabouts on April 11, thus placed him at the home of codefendant Cooper, not on Springfield Way. Not only did that testimony place him at another location, but it placed codefendant Cooper at the other location. His testimony regarding his whereabouts on April 12 again placed him and Cooper, and on this occasion, Elder, at the home of Cooper and away from the house on Springfield Way at the time the burglary was being committed.

During his closing argument the prosecutor made the comment which is the focus of this appeal:

"One other thing I would submit to you that it's very convenient that the defendant cannot recall being on Springfield Street on April the 11th. He certainly can't tell you that he was there casing the area. There is just one other point that I would like to make, and that is that if the testimony is indeed true, why didn't he bring in Mr. Cooper, Mr. Elder?"

II

The Court of Appeal held that the mere existence of a privilege did not render Cooper and Elder unavailable as witnesses, noting that although they were charged with the same offense as defendant, they were competent witnesses who could have been called to determine if they would have exercised their privilege against self-incrimination. The Court of Appeal recognized the possibility, on which the trial court relied, that Cooper and Elder would have asserted a valid claim of privilege, but concluded that it was equally possible that having already pled guilty to being an accessory and therefore risking no further liability, Cooper might have been willing to testify to exculpate defendant if defendant had not been involved in the burglary. The court also reasoned that because Elder had not yet pled guilty, he might have been amenable to giving testimony that confirmed that neither he nor defendant had been involved.

In reversing the trial court's order granting a new trial, the Court of Appeal...