People v. Sul
| Decision Date | 31 July 1981 |
| Docket Number | Cr. N |
| Citation | 122 Cal.App.3d 355,175 Cal.Rptr. 893 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Larry Florez SUL, Defendant and Appellant. o. 4492. |
Larry Florez Sul appeals from a judgment after conviction by jury of violation of Penal Code section 245, subdivision (a), assault with a deadly weapon, and conspiracy to commit assault with a deadly weapon, a violation of Penal Code section 182, with a finding that he used a firearm within the meaning of Penal Code section 12022.5 on the first charge.
The single issue on this appeal is the propriety of the trial court's admission of witness Gilbert Leon's preliminary hearing testimony at the trial. The factual statement is therefore abbreviated.
The ultimate victim in the case, Eddie Segura, became embroiled in an altercation on a highway in Ivanhoe with the occupants of a car which was traveling so slowly that it obstructed his passage. There were four people in the vehicle ahead of him three men and one woman. No one was injured in the exchange.
Later the same evening, victim Segura drove to his girlfriend's apartment in Woodlake, leaving his car in the street in front of it. In response to a knock, his girlfriend, Lydia Martinez, opened the window and a man asked to "talk to that guy who is in there." Segura went to the door, opened it and recognized one of the three men from the incident. (Segura and Martinez later identified him as Frank Zavala who Segura recalled was a passenger in the car involved in the incident. 1 ) Segura told him he was sorry and that he did not want any more trouble. Zavala stated he did not want any more trouble either and stepped to his left side. Segura heard a shot and felt something hit him very hard in the chin. He grabbed his chin with his left hand, and was hit again in the hand. At this point, Segura thought he must have blacked out, but in a kind of daze heard more shots, approximately seven or eight. Neither Segura nor Martinez could see the person who shot him.
Segura identified the appellant as the driver of the car in the Ivanhoe confrontation. After being granted immunity, over objection of appellant's counsel, Gilbert Leon, the third man in the car, testified at the preliminary hearing implicating appellant.
At an earlier trial in this matter, Leon refused to testify, was found in willful contempt and was sentenced to five days in jail. The trial resulted in the jury deadlocking, and a mistrial was declared.
When Gilbert Leon was sworn as a witness at the second trial, he requested that his attorney be present while he was being questioned. During a brief recess, Leon conferred with his attorney by phone. When questioning resumed, Leon refused to answer questions without the presence of his attorney. The court reminded Leon it could impose sanctions against him and that he could go to jail if he continued to refuse to answer questions. In the presence of the jury, Leon reminded the court he had already served five days for his refusal to testify during the first trial. Leon continued to refuse to answer questions and the court found him in willful contempt of court and ordered him committed to jail until he was willing to answer questions. The jury was then informed, at defense counsel's request, that it had been stipulated that Leon had previously been granted immunity for his testimony in the case.
Over defense counsel's objections that witness Leon was not "unavailable" and that he was not cross-examined by defense counsel during the preliminary hearing testimony, the trial court found that the witness was unavailable, and that his testimony from the preliminary hearing could be read to the jury. The court did not adjourn the proceedings for a period of time in order to determine whether the witness would change his mind and testify.
The preliminary hearing testimony, admitted pursuant to the former testimony exception to the hearsay rule (Evid.Code, § 1291), was critical to the prosecution's case, so if there was any error, the judgment would have to be reversed. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; People v. Enriquez (1977) 19 Cal.3d 221, 237, 137 Cal.Rptr. 171, 561 P.2d 261.)
We discuss whether the witness was, under these circumstances, "unavailable."
Evidence Code section 240 provides:
Appellant argues that Leon was not unavailable as a witness because he had been granted immunity and therefore had no valid privilege to assert under Evidence Code section 240, subdivision (a)(1), or any of the other subdivisions.
Respondent concedes Leon did not have a valid claim of privilege in view of the grant of immunity, but argues that rigid definitions of unavailability are no longer valid.
The attempt by the court to secure the witness' testimony and his reaction thereto is set forth in the margin. 2
Unavailability of a witness is a preliminary fact to be established to the satisfaction of the trial court by the proponent of the evidence (Evid.Code, § 405; People v. Enriquez, supra, 19 Cal.3d at p. 235, 137 Cal.Rptr. 171, 561 P.2d 261; Sanchez v. Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 194, 76 Cal.Rptr. 372; Jefferson, California Evidence Benchbook (1972) § 2.6, p. 48.)
Most cases reviewing trial court discretion in reference to determining the preliminary fact of unavailability, have addressed the issue in the context of due diligence by the prosecution to prove that the witness is unavailable by the court's processes. The ruling of the trial court usually remains undisturbed (People v. Williams (1973) 9 Cal.3d 24, 35, 106 Cal.Rptr. 622, 506 P.2d 998). However, since the Sixth Amendment right to confront witnesses is involved in criminal trials, the appellate court may find an abuse of discretion if it determines that the prosecution did not use due diligence. (People v. Enriquez, supra, 19 Cal.3d at pp. 236-237, 137 Cal.Rptr. 171, 561 P.2d 261.)
In the instant case, the court had before it a witness who first demanded that his attorney be present before he testified. Apparently, the attorney was attending another trial and was not immediately available. The court afforded the witness the right to talk to his attorney over the telephone. Following that, the witness continued his refusal to say anything He then refused to answer any questions.
The matter is not covered by any of the provisions of Evidence Code section 240. The Supreme Court was confronted with a somewhat analogous case in People v. Rojas (1975) 15 Cal.3d 540, 125 Cal.Rptr. 357, 542 P.2d 229. Witness Navarrette, a passenger in a car driven by Rojas, testified as the chief prosecution witness at the preliminary hearing and the first trial. The jury was unable to reach a verdict, so was discharged. At the second trial, Navarrette indicated that he would refuse to testify. At an in camera hearing, he stated "that he had received threats by letter and telephone, that bottles had been thrown at his car, that 'things' on his father's car had been broken, that he was called names at school such as 'snitch,' that he was struck physically on one occasion and that he feared for his life and that of his family." (Id., at p. 547, 125 Cal.Rptr. 357, 542 P.2d 229.) He persisted in his refusal after being told that he would be found in contempt of court; he was so found and sent to juvenile hall for the duration of the trial. (Ibid.)
The opinion noted that the record demonstrated that Navarrette harbored a fear and that there was no challenge made to the sufficiency of the evidence supporting the trial court's determination that the fear was justified. (Id., at p. 550, 125 Cal.Rptr. 357, 542 P.2d 229.)
The court construed section 240 of the Evidence Code to express a legislative intent to deem a person unavailable if he is present in court but refuses to testify out of fear. He was thus unavailable as a witness within the meaning of Evidence Code section 240, subdivision (a)(3). The court noted that to hold otherwise would thwart the ends of justice. (Id., at pp. 551-552, 125 Cal.Rptr. 357, 542 P.2d 229.)
The opinion concludes with the following paragraph:
...
To continue reading
Request your trial
-
People v. Rios
...fact to be established to the satisfaction of the trial court by the proponent of the evidence. [Citations.]" (People v. Sul (1981) 122 Cal.App.3d 355, 361, 175 Cal.Rptr. 893.) Where, as here, the court below did not make any determination Evidence Code section 1230 was applicable, we revie......
-
People v. Alcala
...in court, and the court thus was justified in determining that Crappa was unavailable. Defendant's reliance on People v. Sul (1981) 122 Cal.App.3d 355, 175 Cal.Rptr. 893 is misplaced. In Sul, the witness voluntarily declined to testify, leading the trial court to find him in contempt, send ......
-
People v. Zapien
...himself fully of that opportunity. (People v. Green, supra, 3 Cal.3d 981, 990, 92 Cal.Rptr. 494, 479 P.2d 998; People v. Sul (1981) 122 Cal.App.3d 355, 367, 175 Cal.Rptr. 893.) Defendant relies upon the decision in United States v. Salerno (1992) 510 U.S. ----, 112 S.Ct. 2503, 120 L.Ed.2d 2......
-
People v. Smith
...steps to induce the witness to testify unless it is obvious that such steps would be unavailing." (People v. Sul (1981) 122 Cal.App.3d 355, 364-365, 175 Cal.Rptr. 893 (plur.opn.), citing Mason v. United States (10th Cir.1969) 408 F.2d 903; accord, People v. Francis (1988) 200 Cal. App.3d 57......
-
Table of Cases null
...3d 130, 324 P.3d 1 (2014)—Ch. 4-C, §7.2.3(2)(a); §7.4.1; Ch. 5-A, §3.2.2(2)(a); C, §2.2.3(2); Ch. 6, §3.2.1; §3.4.2(4) People v. Sul, 122 Cal. App. 3d 355, 175 Cal. Rptr. 893 (5th Dist. 1981)—Ch. 3-B, §1.2.1(6); Ch. 5-E, §2.4.3; Ch. 7, §3.3.1(1)(b) People v. Sullivan, 151 Cal. App. 4th 524,......
-
Chapter 7 - §3. Types of preliminary fact determinations
...that the declarant is unavailable. See People v. Blackwood (1st Dist.1983) 138 Cal.App.3d 939, 945; People v. Sul (5th Dist.1981) 122 Cal.App.3d 355, 361. See "Exceptions to Hearsay Rule" ch. 3-B, §1 et seq. (c) Secondary evidence of a writing. See Evid. C. §1521. See "Secondary evidence" c......
-
Chapter 5 - §2. Components of right of confrontation
...prior statements as long as the defendant had a prior opportunity to cross-examine the witness. See People v. Sul (5th Dist.1981) 122 Cal.App.3d 355, 368-69. See "Is declarant unavailable?," ch. 5-E, §3.2.2.Note One California Court of Appeal has addressed the circumstances under which a de......
-
Chapter 3 - §1. Overview
...reasonable steps to induce the witness to testify unless it is obvious that they will not work. E.g., People v. Sul (5th Dist.1981) 122 Cal.App.3d 355, 365-367 (before finding declarant unavailable, court should have appointed counsel or incarcerated witness to see if he would recant); see,......