People v. Seijas

• Citation: 30 Cal.Rptr.3d 493,114 P.3d 742,36 Cal.4th 291
• Decision Date: 07 July 2005
• Docket Number: No. S123790.,S123790.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry SEIJAS, Defendant and Appellant.

30 Cal.Rptr.3d 493

36 Cal.4th 291

114 P.3d 742

The PEOPLE, Plaintiff and Respondent, v. Larry SEIJAS, Defendant and Appellant.

No. S123790.

Supreme Court of California.

July 7, 2005.

Flier and Flier, A. William Bartz, Jr., and Andrew Reed Flier, Torrance, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. De Nicola, Margaret E. Maxwell, Deborah J. Chuang and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

In this case, a witness against defendant admitted at the preliminary hearing that he had originally lied to the police about the identity of defendant's accomplice. Because of this, shortly before trial began, defendant's counsel suggested that the trial court should appoint an attorney to advise that witness whether to assert the privilege against self-incrimination. The court did so. When the witness did assert the privilege, defense counsel argued that the witness should be given immunity for his testimony. Counsel also argued that if the witness were granted immunity, defendant could cite that immunity to challenge the witness's credibility before the jury. The prosecution refused to give the witness immunity. As a result, the court permitted the witness to assert the privilege. Ultimately, it declared the witness unavailable to testify at trial and admitted his preliminary hearing testimony.

The Court of Appeal held that the trial court erred in permitting the witness to assert the privilege against self-incrimination and, for this reason, prejudicially erred in admitting the preliminary hearing testimony. We conclude that because defendant did not object on this ground at trial, this issue is not cognizable on appeal. Moreover, the argument lacks merit, as the court properly permitted the witness to assert the privilege given the unusual facts of the case.

I. FACTS AND PROCEDURAL HISTORY

A jury convicted defendant, Larry Seijas, of the second degree murder of Heriberto Salinas, who died of three gunshot wounds inflicted on March 26, 2001.

Among the witnesses who implicated defendant in the crime was 13-year-old Jonathan G. At the preliminary hearing, Jonathan testified that he was riding his skateboard to the market when defendant offered him a ride. Tony Gonzalez was sitting in the front passenger seat, so Jonathan got into the backseat. As they drove towards the market, Jonathan saw defendant and Gonzalez passing a gun between them. Defendant stopped at the market. The victim, Salinas, was driving out of the market parking lot in his pickup truck. Salinas pulled around and stopped on the driver's side of defendant's car. Jonathan got out of defendant's car and started walking toward a nearby alley. From the alley, Jonathan saw defendant standing in the street between his car and Salinas's truck. Salinas was sitting in his truck. Jonathan saw defendant shoot Salinas, then get back in his car and drive away.

On cross-examination, Jonathan admitted that at first he told the police that he did not see anything regarding the shooting. Then, when he did tell the police about what he saw, he lied about who had been in defendant's car. He originally said that Danny Ellis was with defendant, when in fact it was Tony Gonzalez. He falsely identified Ellis because he disliked him. The police arrested Ellis in this matter based on Jonathan's information, then later released him when they learned that Jonathan had lied.

At trial, Jonathan asserted the right against self-incrimination, and the court admitted his preliminary hearing testimony. The question whether Jonathan might incriminate himself first arose on the record at a pretrial hearing when the court asked the parties what was "the situation with [Jonathan] and his potential viability as a criminal suspect for anything?" The deputy district attorney prosecuting the case said that defense counsel had first raised the question whether Jonathan should have an attorney to advise him regarding the privilege against self-incrimination. The prosecutor said that defense counsel said "something to me on Friday that he might ask for an attorney. Frankly, that's the first I've heard of it. I suppose that [Jonathan will] be put in a position where he has to say that yes, he wrongfully accused Mr. Ellis. And that, I guess, is a misdemeanor. So I suppose an attorney should talk to him. Obviously, we're not going to file any charges on that." At this point, defense counsel did not expressly agree or disagree with this statement, but his later comments, discussed below, support the prosecutor's statement that counsel had first suggested that Jonathan should have an attorney to protect his rights. The court asked the prosecutor whether he would give Jonathan immunity. He responded, "I'm sure we would. I have to get that approved." The court asked him to "deal with that" promptly. It also arranged to have an attorney appointed for Jonathan.

This topic next arose on the record after the jury was selected. At this point, the prosecutor stated he did not think his office would give Jonathan immunity, and that he would seek to have Jonathan declared unavailable and use his preliminary hearing testimony. Defense counsel stated, "[I]f the government does not ... give [Jonathan] immunity, then there's going to be a very big issue about the unavailability issue." The court expressed concern: "I think the issue is whether or not the district attorney's office, in good faith, is creating a 5th Amendment issue if the district attorney's office doesn't believe that [Jonathan] was involved in this murder and is merely somebody who was in the back seat of a car who would properly be given immunity. But you [the prosecutor] may be concerned about his wishy-washiness on the stand and would prefer his preliminary hearing transcript to come in."

The prosecutor said he was reluctant to grant Jonathan immunity for either the charged murder or filing a false police report, which he believed might be a misdemeanor violation of Penal Code section 148.5. He explained the reasons: "The issue is once we start giving immunity, then the defense gets up here in closing arguments and is accusing us of buying witnesses and immunizing them and so on. It has a prejudicial effect. Most jurors do not like immunized witnesses and are likely to disregard what they have to say once they've been given immunity."

At the next hearing, the parties again discussed the question of immunity. The court asked the prosecutor for a final answer on whether he would grant Jonathan immunity. He responded that he had spoken with his supervisor, and they agreed that they did not want to offer immunity. He also said it was unlikely that Jonathan would be prosecuted for any role in the murder because the prosecution had no evidence implicating Jonathan in the murder. Indeed, an independent witness had provided information that he was not involved. He also did not believe it likely Jonathan would be prosecuted for making a false statement to a police officer: "Arguably it can be claimed that perhaps when he ... accused Mr. Ellis, that was a misdemeanor possibly. I looked at the law and the annotations last night. It's not 100 percent clear to me that that's the case. But it's always possible. But I wouldn't be recommending it." He said that it had not occurred to him to prosecute Jonathan until defense counsel raised the question.

The court summarized the situation as it saw it: "We have a district attorney's office who is intending not to exercise their discretion and give immunity to [Jonathan]. The subject, however, would not have come up if [defense counsel] would not have made the initial request for [Jonathan] to have an attorney. So now [defense counsel] is faced with the consequences of requesting this attorney, which is that he's going to exercise his 5th Amendment privilege. [Defense counsel] is now going to object because he doesn't want a preliminary hearing transcript to be used." At that point, an attorney arrived to represent Jonathan. This attorney and the court ascertained that the district attorney was not willing to give Jonathan immunity.

The prosecutor explained his position further: "Our position is that ... there is no authority that forces us to grant immunity. It's something that's in our discretion. And it's our belief, the D.A.'s office, that the community and jurors and generally defense counsel don't appreciate when we use that discretion.... [I]n the past administration it was very perfunctory. We'd write our memo, and immunity would be granted every single instance in the last four years.... [W]ith the new administration, they're being very reluctant to grant it." The court expressed concern about the district attorney's attitude: "We have a witness who is critical to the People's case. And in the interest of justice, the jury would have a much better sense of who [Jonathan] is and whether or not they want to believe him or think he's just a stupid, mixed-up kid or whatever if they have an opportunity to observe his demeanor. And so what you're ... saying is based on really ... not credible reasons other than you just don't want him in front of the jury." The court wondered why the prosecutor would not grant immunity in light of the fact he did not believe Jonathan was involved in the murder or that Jonathan would be prosecuted for giving false information.

The prosecutor explained his reasons further: "The most basic concern is the one that I have in every case where I'm forced to offer immunity. This happens all the time. You talk with defense attorneys, `Oh, you better get the witness immunity because I'm going to ask for a lawyer to come in.' So then we have to now immunize them in a case where we never intended on prosecuting, just like this case, just like what [defense counsel] did now. All of a sudden, we give...