People v. Hull
| Decision Date | 31 January 2019 |
| Docket Number | C079134 |
| Citation | 31 Cal.App.5th 1003,243 Cal.Rptr.3d 375 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Tyrus HULL, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Anne V. Moore, Retained Counsel for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
In this case, we address whether the prosecution must grant use immunity to a prosecution witness who invokes his right of self-incrimination at trial instead of introducing the witness's preliminary hearing testimony under the provisions of Evidence Code section 1291,1 the hearsay and confrontation clause exception for former testimony. We also address issues related to defendant's opportunity to cross-examine the witness during the preliminary hearing.
Defendant Tyrus Hull appeals from a judgment of conviction for the assault of Marqurus Bonner. A jury found defendant guilty of assault with a deadly weapon, to wit, a motor vehicle. ( Pen. Code, § 245, subd. (a)(1).) The trial court sentenced defendant to two years in state prison.
On appeal, defendant contends that: (1) the trial court erred in admitting at trial prosecution witness Jerry Chatman's preliminary hearing testimony after he invoked the right to remain silent because the defense did not have the opportunity to cross-examine Chatman about a prior criminal conviction not disclosed by the prosecution until after the preliminary hearing or about alleged threats made to defendant's wife the day after defendant's arrest; (2) instead of allowing the prior testimony, either the trial court or the prosecutor should have provided Chatman use immunity and the prosecutor failed to adequately explain his reason for declining to provide immunity; (3) the manner of reading the preliminary hearing testimony was inappropriate and imputed the demeanor of the reader to Chatman; and (4) counsel at his preliminary hearing was constitutionally ineffective for failure to cross-examine Chatman regarding his alleged participation in threatening and intimidating defendant's wife the day after the alleged assault occurred.
In the published portion of this opinion, we conclude that the trial court was not required to grant immunity. Additionally, the prosecutor here was not required to provide immunity because the defense did not establish that what it hoped to gain by cross-examination was clearly exculpatory and essential. Regarding defendant's contention that the prosecutor did not adequately explain in the trial court his refusal to grant immunity, we conclude the prosecution was under no obligation to set forth governmental interests countervailing against a grant of immunity because the defense failed to show that the testimony it hoped to gain was clearly exculpatory and essential and for the additional reason that defendant did not clearly assert that the prosecutor's refusal to grant immunity was prosecutorial misconduct. Regarding the opportunity to cross-examine requirement of section 1291 related to postpreliminary hearing disclosure of the witness's criminal history, we note that whatever the prosecutor's statutory and constitutional discovery obligations may have been, the failure to disclose the witness's criminal history before the preliminary hearing deprived defendant of the opportunity to cross-examine the witness about it at the preliminary hearing. However, in this case, any error was harmless beyond a reasonable doubt. Regarding a postarrest incident where defendant's wife was threatened by victims in this case, we make clear that the defense cannot forgo cross-examining a witness at a preliminary hearing about information then known to defendant or the defense team and later prevent the introduction of the preliminary hearing testimony at trial under section 1291 on the grounds that the defendant did not have the same motive or opportunity for cross-examination at the preliminary hearing.
In the unpublished portion of this opinion, we further conclude that there was nothing inappropriate about the reading of the preliminary hearing testimony and that defendant has failed to establish ineffective assistance of counsel.
We affirm.
Defendant was charged with three counts of assault with a deadly weapon, to wit, a motor vehicle, in violation of Penal Code section 245, subdivision (a)(1). The alleged victims were Jerry Chatman (count one), Marqurus Bonner (count two), and Brandon Jackson (count three).
The charges in this case stem from an August 25, 2013, verbal altercation between defendant and three younger men who were strangers to defendant—Bonner, Jackson, and Chatman. The events took place at a medical marijuana dispensary in Sacramento.
Security guard Orlando Ramon testified that he heard an argument develop inside the dispensary between the three younger men and defendant. The three men loudly bragged about "pimping" women, to which defendant responded that they were young and did not know what they were talking about. The three men responded, " " At some point, defendant said he was from Richmond and one of the three men said he was from Richmond as well. The three men purchased their medication and walked out, followed shortly thereafter by defendant. On his way out, defendant told Ramon, " ‘These youngsters don't know what they're talking about.’ " Defendant did not seem angry at the time. Ramon also exited, hoping his presence would prevent anything from happening.
Ramon testified that once outside, he saw the three men standing next to a Cadillac a "pretty good distance" away from defendant's vehicle. The three younger men were saying things to defendant as defendant walked toward his vehicle. Defendant got into his vehicle, drove off in the opposite direction as if he was about to leave, but then made a U-turn, drove back toward the three men, rolled down his windows, and stopped right next to them.2
The younger men then walked into the street and continued to say things to defendant while approaching him with hand gestures. Ramon thought the three men appeared to be aggressive, but they were not blocking defendant's path. Ramon could not hear everything, but words were exchanged and he did hear some of what was said.
Ramon heard Bonner tell defendant to get out of his vehicle. Defendant replied, " " Bonner replied, " " Defendant then drove forward, made another U-turn and then drove back toward Bonner. Ramon saw defendant accelerate rapidly toward Bonner and heard tires squealing. Bonner ran toward an adjacent parking lot, at which point Ramon's view was blocked by trees. Defendant exited the street and drove into the parking lot after Bonner. Ramon thought he heard a "thump" as the tires ran over something and heard the other two men yell, " ‘He hit him.’ " Their voices sounded "distraught," "high pitch[ed]," and "worried." Defendant drove past Chatman and Jackson and the two then picked up rocks and threw them at defendant, missing his vehicle.
Ramon testified that defendant drove back onto the street and then reentered the parking lot. Defendant drove his vehicle into a tree planter area near where the men were located. As defendant's vehicle approached, the men ran from where they had been standing near their car. Two of the men threw rocks at defendant's vehicle. Defendant then crashed into their Cadillac, keeping his foot on the gas and pushing the vehicle out onto the street. At that point, the same two men threw more rocks at defendant's vehicle, this time breaking his windows. As they continued to throw rocks, defendant drove away. Ramon went inside to call 911 and when he came back outside, the three men were gone. They later came back to the scene sometime after the police arrived.
Bennett Hicks, an employee of the dispensary, testified that he could not remember any details of the incident because he has "Arnold-Chiari malformation," a condition that causes memory loss. He testified he remembered talking to police about what he saw on the video surveillance and that he remembered serving defendant while he was in the dispensary on that date. Hicks testified that he would not have lied to the police when he was interviewed that day. The trial court found that Hicks was not suffering from memory loss; rather he was being purposefully and deliberately evasive and untruthful in his testimony. Based on this finding, the court allowed Hicks’ prior statements to the police and preliminary hearing testimony to be introduced.3
Sacramento Police Officer Jason Lee interviewed Hicks on the date of the incident. Officer Lee testified that Hicks identified defendant as the person driving erratically that day and identified Bonner, Jackson, and Chatman as victims of defendant's driving conduct. Hicks told Officer Lee that he did not see any of the three men get hit but did see "one of them flying out of the way." Hicks did not clarify exactly when in the chain of events he saw rocks thrown at defendant's vehicle, leaving Officer Lee uncertain as to whether it was before defendant possibly hit one of the three men. Hicks saw defendant drive on the grass and hit a palm tree, back away from the tree, and run into the parked Cadillac belonging to the three men.
In his preliminary hearing testimony, Hicks said he saw the three young men walk out of the dispensary after exchanging words with defendant, and defendant walked out shortly thereafter. Hicks then viewed the surveillance video from inside the dispensary. On the surveillance video, he saw the three men standing around the Cadillac when defendant made a...
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