The opinion
Filed 1/30/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080776
Plaintiff and Respondent,
v. (Super. Ct. No. SCE407393)
ADRIAN LAMONT BROOKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Frank L. Birchak, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury found Adrian Lamont Brooks guilty of both inflicting corporal
injury on a domestic partner, R.J., and committing assault by means likely to
produce great bodily injury. Brooks raises two arguments on appeal: (1) the
trial court erred in instructing the jury that R.J. had exercised the privilege
against self-incrimination because she never personally invoked it after being
called and sworn, and thus she was not legally unavailable to testify; and
(2) the trial court abused its discretion in failing to replace an allegedly
biased juror.
We disagree. We conclude R.J. asserted a valid Fifth Amendment
privilege through counsel, making the related jury instruction proper. We
further conclude the trial court’s decision not to excuse the challenged juror
was supported by substantial evidence the juror was not biased. We thus
affirm.
BACKGROUND
I.
The evening of July 1, 2021, Brooks and his on-and-off partner, R.J.,
got into an altercation at a gas station. After law enforcement reported to the
scene and investigated, the officers found probable cause to arrest Brooks.
Brooks was charged with inflicting corporal injury on a domestic
partner (Pen. Code, § 273.5, subd. (a); count 1) and committing assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2.)
II.
At trial, two eyewitnesses and several first responders testified about
Brooks and R.J.’s fight.
D.H., who lived in an apartment building across the street from the gas
station, awoke to R.J. “screaming . . . at the top of her lungs.” From her door,
D.H. saw Brooks pull R.J. out of a van. She also observed him “stomping on
[R.J.] and punching her.”
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D.H. called 9-1-1. She thought R.J. “was trying to resist” and looked
fearful as she shouted for help. D.H. then saw her neighbor, A.A., run to
“try[ ] to separate them.”
A.A. heard yelling at the gas station and D.H. calling 9-1-1. She heard
D.H. say (1) a man was choking a woman who was going to die but (2) she
was too scared to get involved, prompting A.A. to run outside. A.A. “saw a
man beating up this woman[,] . . . on top of her [and] strangling her,” so A.A.
pushed him. Brooks tried to get in his van and leave, but R.J. would not let
him, so they continued to fight physically. Brooks inadvertently hit A.A.
Eventually, A.A. tore off Brooks’ shirt to reseparate him from R.J.
Police officers and a paramedic responding to the scene found R.J.
upset and disoriented. According to the paramedic, R.J. had injuries
consistent with “significant blunt force trauma.” According to an officer,
Brooks had scratches on his face consistent with defensive wounds.
III.
R.J. did not testify at trial. Brooks, however, testified on his own
behalf, and his version of events differed from that of the other witnesses.
According to Brooks, after he and R.J. spent several hours drinking at a
party, they went to a bowling alley to meet friends. R.J. refused to go to the
bathroom there, so Brooks offered to drive to a gas station where she could
use the restroom. On the way, R.J. urinated in a bucket, which spilled in
Brooks’ van. Brooks got napkins from the gas station attendant so R.J. could
clean the mess.
When Brooks returned to the van, R.J. was using her dress to wipe up
the urine, so Brooks grabbed for the dress and tried to hand her the napkins.
R.J., however, pulled her dress back, which caused a buckle on it to hit her in
the face. Brooks laughed, and R.J., who was angry, picked up an ashtray and
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hit him on the head. Brooks and R.J. began arguing, and R.J., who was in
the van, tripped and fell out the door. Brooks caught her before she fell but
landed on top of her. The van’s door compartment broke, and Brooks’
belongings fell on the ground.
Brooks testified that he helped R.J. up and told her he was going to
leave her there, as he was angry. He previously had been jailed for
altercations with R.J., so he wanted to leave before the police arrived. R.J.
yelled for her belongings, and Brooks screamed to let him leave. R.J. got
angry and grabbed Brooks’ shirt, and they started “tussling.” A.A. ran over
and told R.J. to let go of Brooks. According to Brooks, R.J. then hit A.A.
Once Brooks got away and began picking up his things, the police
arrived. He refused to go with them until he had collected his belongings, but
the police jumped on him and choked him until he was unconscious.
Brooks denied stomping on or attempting to strangle R.J. He said the
two eyewitnesses “told a bunch of lies” and “missaw” the events.
IV.
After deliberating fewer than two hours, a jury found Brooks guilty of
both charged counts.
ANALYSIS
Brooks argues the trial court reversibly erred in two ways. First, he
contends R.J. did not legally assert her Fifth Amendment privilege against
self-incrimination because she was never called and sworn, and so the court
erred in instructing the jury that the privilege applied, thereby preventing
defense counsel from arguing an adverse inference from her refusal to testify.
Second, he claims the trial court abused its discretion in refusing to excuse an
allegedly biased juror, thus violating Brooks’ right to an impartial jury. We
address each claim in turn.
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I.
We review Brooks’ claim of instructional error de novo. (People v.
Guiuan (1998) 18 Cal.4th 558, 569.)
A.
Brooks’ challenge to the jury instruction stems from the trial court’s
ruling that R.J. was unavailable because she invoked her Fifth Amendment
right against self-incrimination.
1.
In an unreported pretrial conference, the court and counsel discussed
how R.J. likely had a Fifth Amendment privilege not to testify. The court
requested R.J. be provided counsel for that reason.
R.J.’s appointed counsel appeared at a subsequent pretrial hearing, at
which he confirmed that his “client would likely be asserting her 5th
Amendment privilege, absent any grant of immunity.” The prosecutor opined
that, because R.J. recently pled guilty to a charge, she no longer enjoyed a
Fifth Amendment privilege.
The court found a colorable Fifth Amendment privilege despite R.J.’s
recent plea agreement. Because the defense intended to question R.J. about
hitting Brooks with the ashtray, which was “very relevant to the central issue
in this case,” the court said it “easily sees an answer of, yes, I hit him with an
ashtray as incriminatory. I don’t think it gets much more incriminatory.”
Even if the plea addressed that conduct, the court noted it was “not yet final,”
so “[R.J.] would still have a 5th Amendment right.” R.J.’s counsel confirmed
R.J. “would be asserting . . . the Fifth to that line of questioning.”
The court noted if the People granted immunity, “[R.J.] would be
ordered to testify as to those subjects.” But R.J.’s counsel opined any
immunity “would have to be pretty far reaching and go beyond simply an
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immunity from assault.” He indicated “something that would address
substance-related conduct” “would be another necessary element,” given a
pending case against R.J. for driving under the influence. As “the facts of
this case are going to show [R.J.] was urinating in a bucket in the car[,] . . .
the court might be able to draw some inferences about her mental state.”
R.J.’s counsel further noted “she had several prior domestic violence related
convictions” and a pending dependency case, so he “want[ed] to make sure
she is protected about violating any pretrial orders” in that matter.
Based on that information, the court found “there is likely [a] sufficient
showing . . . to assert [a] 5th Amendment privilege . . . on assaultive conduct
that night, and . . . a broad range of abuse of substances or under the
influence of alcohol conduct.” The prosecutor asked the court to reserve
ruling so she could discuss the immunity issue with her supervisor. The
court agreed, saying it was “just raising the issues of . . . what [it] think[s] the
court would be likely [to] find there would be privilege to, so that . . .
everybody’s on the same page of what immunity would be necessary in order
to have [R.J.] testify.”
2.
The first day of trial, the prosecutor said she was not offering R.J.
immunity. Defense counsel asked the court to grant derivative use
immunity, but the court denied the request as outside its “discretion or
authority.” The prosecutor clarified that her office may reconsider an
immunity offer if “[she] could not prove the case unless [R.J.] took the stand.”
During a conference the second day of trial, defense counsel said it was
“clear the prosecution does not intend to call [R.J.],” which she believed
raised evidentiary concerns “since [R.J.] is not unavailable.” The court
disagreed, finding “[s]he is unavailable. She’s asserted her Fifth Amendment
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privilege, which makes her unavailable.” Defense counsel acknowledged this
privilege without objecting to the way R.J. asserted it. Instead, defense
counsel focused on immunity, insisting “the prosecution can make [R.J.]
available by offering immunity.” The court replied that the prosecution was
not obligated to offer immunity and that refusing to offer immunity “does not
make [R.J.] . . . available.”
The third day of trial, defense counsel asked to call R.J. to testify to
nonprivileged issues so the jury could assess some of the physical evidence
the People relied on to show Brooks choked R.J. The court said it was
“leaning towards . . . allowing [the defense] to call [R.J.]” for that limited
purpose but cautioned there are “always tradeoffs.” For example, if R.J.
testified, the court would allow the People to present certain body-worn
camera footage. The court also likely would allow the People’s domestic
violence expert to testify, because R.J.’s testimony would “trigger[ ] issues
related to her demeanor and attitude on the stand.”
That afternoon, defense counsel still planned to call R.J. to testify.
Should R.J. assert her Fifth Amendment privilege on the stand, the court was
inclined to instruct the jury with CALCRIM No. 320 (exercise of privilege by
a witness). The court reiterated it had already “found that there are
components, things, that might not incriminate [R.J.] but a lot of things
potentially that would.” While it may need to conduct a further hearing
“about other areas” of questioning to assess “whether or not she has a
privilege to those” topics, as for the topics already discussed, R.J. “has a right
to a privilege and [the court] do[es not] need additional testimony about
that.” To the extent R.J. chose “to answer certain incriminating questions,”
the court would treat those responses “as a waiver of the Fifth Amendment
privilege.”
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The fourth day of trial, after speaking with her client and R.J.’s
counsel, defense counsel decided not to call R.J. The trial court then excused
R.J., who was present.
Later that day, after the defense rested, the court and counsel
discussed the possibility of instructing the jury “along the lines of” CALCRIM
No. 320. The prosecutor requested that type of instruction so the jury would
not “speculate” about R.J.’s failure to testify. Defense counsel asked the court
not to so instruct because “[t]here was no privilege [¶] . . . [¶] [e]xercised in
front of the jury,” so such an instruction “would be misleading and confusing.”
The court “lean[ed] towards” finding CALCRIM No. 300 “sufficient to
cover th[e privilege] issue,” as it instructs that neither side is obligated to call
all witnesses who are, or produce all evidence that is, potentially relevant.
But the prosecutor objected because failing to call the victim in a domestic
violence case would “look[ like] a failure by the People.”
In the end, the court concluded that because R.J. asserted the privilege
and the law prohibits the jury from drawing any inference from her failure to
testify, the court “need[ed] to tell them in some fashion that that is the state
of the law,” even if the instruction “doesn’t address the reason why.” In
response, defense counsel asked if the court would “consider telling the[ jury]
that [R.J.] invoked her right against self-incrimination.” When the court
agreed, defense counsel indicated she was “happy.” The court proposed
language and twice elicited agreement from both counsel that the instruction
was acceptable.
The given instruction read: “A witness may refuse to answer questions,
or testify, if it calls for privileged information. [R.J.] asserted her privilege
against self-incrimination. Under the law, [R.J.] was justified in refusing to
testify. Do not consider her refusal to testify for any reason at all and do not
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guess what her testimony would have been.” The instruction was
substantively identical to what the parties discussed earlier that day.
B.
Brooks’ claim of instructional error depends entirely on his view that
“there was no privilege asserted” because “[R.J.] was never called to the
stand[ and] never sworn.” It is only for that reason he claims that
“instruct[ing] the jury ‘[R.J.] asserted her privilege against self-
incrimination’” was “factually incorrect” and thus in error.
California codified the federal constitutional right not to incriminate
oneself as a statutory privilege that we construe liberally. (U.S. Const.,
5th Amend.; Cal. Const., art. I, § 15; Evid. Code, § 940; People v. Capers
(2019) 7 Cal.5th 989, 1010.) We review de novo a trial court’s finding that a
witness has a Fifth Amendment privilege. (People v. Seijas (2005) 36 Cal.4th
291, 304 (Seijas).) For purposes of this opinion, we assume the same
standard applies to determine if a witness effectively exercised the privilege.
1.
Brooks argues R.J. did not actually exercise her privilege against self-
incrimination. He claims the privilege can be asserted only by the holder
personally on a question-by-question basis after being called and sworn.
Because R.J. never invoked the privilege in that manner, Brooks argues “the
court was not in a position to determine whether [she] could exercise the
privilege.” The People contend R.J. validly asserted the privilege under the
circumstances of this case and the court “possessed sufficient information to
determine whether the invocation was valid.” We agree with the People.
a.
Thirty-five years ago, our Supreme Court stated: (1) the privilege
against self-incrimination is “personal and may be asserted only by the
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holder,” and (2) to assert it, “a witness must not only be called but must also
be sworn.” (People v. Ford (1988) 45 Cal.3d 431, 439-440 (Ford).) Those
seemingly definitive statements, however, must be considered in their fact-
specific context.
In Ford, defense counsel speculated that two codefendant witnesses—
who he did not represent—“might claim the privilege if called” to testify.
(Ford, supra, 45 Cal.3d at p. 440, italics added.) Although the codefendants
were never called as witnesses and never asserted any Fifth Amendment
privilege, defense counsel argued that, in a criminal trial, any witness who is
or has been a codefendant and who conceivably could exercise the privilege
should be deemed “‘unavailable’” as if he or she had in fact asserted a
privilege. (Ford, at p. 439.) Our Supreme Court rejected that argument
because the privilege is personal, so “a codefendant[ ] or other witness”
cannot assert the privilege on another’s behalf. (Ibid.) Moreover, the trial
court never spoke with the witnesses or their counsel, so it never had the
chance to explore if questioning would be incriminating or if the witnesses
would waive any privilege. That factual situation informed the Supreme
Court’s holding that a witness must be called and sworn. (Id. at pp. 440-442.)
Our Supreme Court later summarized this holding to clarify that, “[t]o
be found unavailable on this ground, a witness must not only intend to assert
the privilege, but also be entitled to assert it.” (People v. Cudjo (1993)
6 Cal.4th 585, 616 (Cudjo), citing Ford, supra, 45 Cal.3d at pp. 440-441.)
A subsequent decision shows flexibility in how a witness may validly assert
his or her privilege against self-incrimination so long as the trial judge has
the information necessary to assess the existence of the privilege.
For example, under the right circumstances, counsel may assert the
privilege on behalf of his or her client. In People v. Apodaca (1993)
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16 Cal.App.4th 1706, 1713, 1716 (Apodaca), the trial court appointed counsel
to advise a witness of her Fifth Amendment rights and ordered the witness to
testify “to determine if she would invoke the privilege.” During a hearing,
the witness was sworn and testified about some matters. (Id. at p. 1716.)
When asked a potentially incriminating question, her counsel interjected
“‘to assert The Fifth.’” (Id. at p. 1713.) The trial court found the witness had
a valid privilege, and defense counsel agreed. (Id. at pp. 1713-1714.)
On appeal, the defendant, relying on Ford, argued the witness did not
properly invoke the privilege against self-incrimination because her attorney,
rather than the witness herself, invoked the privilege. (Apodaca, supra,
16 Cal.App.4th at p. 1714.) This district, however, rejected that argument.
Although “generally a witness must first be placed under oath, take the
stand[,] and actually refuse to answer an incriminatory question” to invoke
the privilege, that process enables the trial court to fulfill its “duty to judge
whether a particular question put has the tendency to subject the witness” to
self-incrimination. (Ibid., italics added.) This duty requires the court to
know the line of questioning, as “the court, not the individual, . . . must make
the determination whether invocation of the privilege is proper.” (Ibid.) In
Apodaca, “[t]he privilege was asserted as to specifically identifiable matter[,]
which the trial court correctly assessed as having the potential to incriminate
[the witness].” (Ibid.) The witness’s counsel was “clearly acting under the
authorization of the client” when invoking her privilege, so “there is little
point or sense in insisting that the client also personally invoke the
privilege.” (Id. at p. 1715.) Accordingly, the trial court properly found that
the witness invoked her privilege against self-incrimination. (Id. at p. 1713.)
In addition, a defendant may waive or forfeit any perceived procedural
objection to an invocation of privilege by agreeing the privilege exists and
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failing to call the witness to invoke it personally. In Cudjo, the trial court
appointed counsel to advise a defense witness and, after consulting with the
witness, counsel informed the prosecutor that the witness would exercise his
Fifth Amendment privilege absent a grant of immunity. (Cudjo, supra,
6 Cal.4th at p. 620.) The prosecutor refused to grant immunity. (Ibid.) After
consulting with the witness and the witness’s counsel, defense counsel
decided not to call the witness to the stand. (Id. at p. 621.) On appeal, the
defendant claimed “the trial court erred in failing to require that [the
witness] assert under oath the privilege against self-incrimination.” (Id. at
p. 620.) Our Supreme Court rejected the argument. (Ibid.) Because the
witness was a defense witness, defense counsel—not the trial court—bore
responsibility for not calling the witness to the stand to invoke the privilege
personally. (Ibid.)
Ultimately, in determining if a witness has a valid privilege, the court
should be guided not only by the facts in evidence, but also by its perception
of the unique circumstances of the case. (Hoffman v. United States (1951)
341 U.S. 479, 487 (Hoffman).) “Witnesses may refuse to answer questions
calling for a potential link in a chain of evidence of guilt.” (People v. Lucas
(1995) 12 Cal.4th 415, 454 (Lucas).) Thus, a court may compel a witness who
has invoked the privilege to testify only if “it clearly appears to the court that
the proffered [testimony] cannot possibly have a tendency to incriminate the
person claiming the privilege.” (Evid. Code, § 404.)
b.
We conclude, on the record before us, that R.J. asserted a valid
privilege against self-incrimination. R.J. was the victim of the domestic
violence incident underlying the case, and the court was aware of facts about
not only what Brooks had done to R.J., but also what R.J. had done to Brooks.
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It was for that reason the court determined R.J.’s testimony could implicate
Fifth Amendment issues and appointed counsel to advise her accordingly.
After discussing the issue with his client, R.J.’s counsel agreed that,
absent a grant of immunity, R.J. “would” assert the Fifth Amendment to any
line of questioning about her potentially assaultive behavior―a line of
questioning the defense intended to pursue. The court found it does not
“get[ ] much more incriminatory” than admitting to hitting another person in
the head with an ashtray. R.J.’s counsel also raised the issue of privilege as
to any testimony implicating substance abuse, given a pending case against
R.J. for driving under the influence and his client’s plainly impaired mental
state the night of the fight. Based on R.J.’s counsel’s assertions and its own
knowledge of the unique circumstances of the case, the court tentatively
found these areas of testimony privileged absent a grant of immunity.
(Hoffman, supra, 341 U.S. at p. 487.) Thus, once the prosecutor declined to
grant immunity, the court declared R.J. had “asserted her Fifth Amendment
privilege, which makes her unavailable.” Defense counsel never objected in
the trial court to the propriety of this decision or the way it was reached.
Here, like in Apodaca, the trial court had sufficient information to
assess the validity and scope of R.J.’s claim of privilege. (Apodaca, supra,
16 Cal.App.4th at p. 1714.) The court did not find that R.J. had a blanket
privilege against testifying; indeed, the court said the defense could call R.J.
to testify for other purposes, including negating the People’s claim that
Brooks choked R.J. Defense counsel, however, tactically decided not to call
R.J. given the many “tradeoffs” identified.
We reject Brooks’ argument that R.J.’s counsel’s statements were mere
“[i]ntentions” inadequate to “invo[ke]” the privilege. R.J.’s counsel was clear
that, absent a grant of immunity, his client “would” assert the Fifth
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Amendment on assault-related issues. He also required a grant of immunity
for R.J. to testify about issues involving substance use. These are not
equivocal statements.
Moreover, to the extent Brooks argues only R.J. could assert the
privilege after being called and sworn, we disagree. “There can be no doubt
[R.J.’s] attorney was authorized to make the[se] statement[s],” having been
appointed for the express purpose of protecting R.J.’s Fifth Amendment
interests. (Apodaca, supra, 16 Cal.App.4th at p. 1715.) In these
circumstances, we see no reason why the representations of an officer of the
court should be given less credence than a sworn witness’s. To make R.J.
take the stand to repeat the same assertions would have wasted judicial time
and resources. (Ibid.) The trial court had no independent duty to do so when
it had the information necessary to assess the validity of the privilege.
(Cudjo, supra, 6 Cal.4th at p. 621.) If defense counsel believed the procedure
insufficient, she could have called R.J. to the stand and required her to assert
the privilege on a question-by-question basis. (Ibid.) She chose not to.
We are unpersuaded by Brooks’ attempt to analogize to Ford, where
the court rightfully rejected a speculative claim of third-party witnesses’ Fifth
Amendment privilege made by the defendant’s counsel. As we note above, in
Ford, the defendant and his counsel admittedly had no standing to assert a
privilege on behalf of the third parties, and the trial court had no idea if the
third parties would elect to waive the privilege. (Ford, supra, 45 Cal.3d at
pp. 440, 442.) Here, in contrast, R.J. received counsel to represent her for the
express purpose of protecting her Fifth Amendment interests, which he did
after consulting with R.J. personally and conveying her refusal to testify as to
certain topics absent a grant of immunity.
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The way in which this case is factually similar to Ford does not favor
Brooks. As Brooks notes, in Ford, the Supreme Court rejected the
defendant’s “claim of prosecutorial misconduct based on a belated assertion
that [the witnesses] were ‘unavailable’” “[b]ecause [the] defendant had not
attempted to call the witnesses.” (Ford, supra, 45 Cal.3d at p. 439.) The
same is true here. Although the defense sought R.J.’s testimony, defense
counsel never insisted that R.J. take the stand, be sworn, and invoke the
privilege on a question-by-question basis. Instead, defense counsel
repeatedly conceded that R.J. exercised her Fifth Amendment privilege,
which was the trial court’s basis for finding her unavailable. In these
circumstances, defense counsel—not the trial court—bears responsibility for
failing to insist that R.J. invoke the privilege in a particular manner. (Cudjo,
supra, 6 Cal.4th at p. 621.)
We also find unavailing Brooks’ bid to distinguish Apodaca, where the
witness likewise validly invoked the privilege through counsel. There, as
here, the witness “was fully advised of her rights,” “counsel was appointed for
her for the very purpose of protecting that right,” the witness “consulted
privately with counsel . . . on that subject,” and “the attorney was authorized
to make the statement.” (Apodaca, supra, 16 Cal.App.4th at p. 1715.)
Although in Apodaca the witness was sworn and sitting to testify when her
counsel expressly invoked the privilege on her behalf, she herself “made no
gesture, remark[,] or other indication of disapproval or disagreement.” (Id. at
pp. 1714-1715.) Her counsel’s invocation was enough. Most importantly, in
Apodaca, the trial court required the witness to testify so it could obtain
sufficient information to assess the validity of the witness’s potential
privilege and determine if she would invoke it. (Id. at pp. 1714, 1716.) The
15
trial court here, however, already had sufficient information to make such a
finding without the need for R.J. to take the stand.
Given (1) R.J.’s role in the case and (2) the court’s knowledge of the
facts and the defense’s intended line of questioning, the trial court had
sufficient information to conclude R.J.’s answers would likely “call[ ] for a
potential link in a chain of evidence of guilt.” (Lucas, supra, 12 Cal.4th at
p. 454.) Further, consistent with Cudjo and Apodaca, R.J. personally invoked
the privilege through her authorized attorney after being given an
opportunity to instead waive her rights. (Cudjo, supra, 6 Cal.4th at pp. 620-
621; Apodaca, supra, 16 Cal.App.4th at pp. 1713-1715.) That information
was sufficient for the trial court to find that R.J. invoked the broadly
construed protections of the privilege against self-incrimination.1
On this record, we, like the trial court, are unable to conclude the
testimony in question “cannot possibly have a tendency to incriminate [R.J.]”
(Evid. Code, § 404.) Accordingly, we conclude R.J. had and adequately
exercised a valid Fifth Amendment privilege. The trial court did not err
when it so found.
2.
Brooks further contends the court erred in instructing the jury with
CALCRIM No. 320, which he asserts “was factually incorrect” based on his
1 For all these unique circumstances, Ford’s longstanding rule is not so
inflexible as to forbid the trial judge from sustaining the witness’s assertion
of her privilege against self-incrimination here, contrary to the suggestion of
our concurring colleague.
16
claim that “there was no privilege asserted.”2 For the reasons provided
above, however, we conclude R.J. validly asserted her privilege. Accordingly,
the court properly instructed with CALCRIM No. 320, which instructed the
jury it was not to consider R.J.’s failure to testify in any way or speculate as
to what she may have said given her invocation of the privilege against self-
incrimination.
If a person successfully exercises a privilege, “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.” (Evid. Code, § 913, subd. (a).) The court shall so
instruct the jury if requested by a party who could be adversely affected by
such an inference. (Id., § 913, subd. (b).)
2 This alleged lack of privilege is the only basis for instructional error
that Brooks raises on appeal. At trial—but not on appeal—Brooks also
objected to this instruction on the ground that it would call the jurors’
attention to a Fifth Amendment invocation “they did not see happen and that
they’re completely unaware of.” Although we understand our concurring
colleague’s concern about the possibility the trial court erred by alerting the
jurors to a privilege invoked outside their presence (see Cudjo, supra,
6 Cal.4th at p. 619 [“[P]ermitting the jury to learn that a witness has invoked
the privilege against self-incrimination serves no legitimate purpose and may
cause the jury to draw an improper inference of the witness’s guilt or
complicity in the charged offense.”]; but see People v. Hill (1992) 3 Cal.4th
959, 990 [in rejecting claim that witness should have been required to invoke
the Fifth Amendment before the jury, noting the jury was instructed that
“‘[the witness] was called as a witness in this case outside the presence of the
jury, and that [the witness] with advice of his counsel refused to testify,
basing his refusal upon his constitutional privilege against self-
incrimination.’”]), because Brooks does not argue it on appeal, that issue is
not properly before us. (See People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 419.)
17
Here, the prosecution requested the instruction, claiming the jury may
perceive its failure to call R.J. as a witness as a failure of proof. Absent the
contested instruction, the jury may have speculated as to why R.J. did not
testify and may have drawn some adverse inference from that fact, despite
section 913, subdivision (a)’s proscription. In these circumstances, where a
valid privilege was exercised and a potentially adversely affected party
requested the instruction, giving the challenged instruction was not error.
* * *
In sum, we conclude R.J. asserted a valid Fifth Amendment privilege as
to certain testimony, and the court thus properly instructed the jury on
CALCRIM No. 320 at the People’s request. Brooks argues no other reason
the challenged instruction was erroneous. As we perceive no error on the
asserted basis, we need not address Brooks’ claim of prejudice. Likewise, we
need not decide the People’s claim that Brooks’ instructional challenge is
barred by either the doctrine of invited error or forfeiture.
II.
Brooks next challenges the trial court’s refusal to dismiss a juror for
alleged bias. As discussed below, we find no fault in the court’s ruling.
A.
On the second day of trial, Juror No. 11 told a courtroom deputy “she
may know one of the upcoming witnesses.” The witness, A.A., also told the
prosecutor that she and Juror No. 11 “work[ed] at the same place.” In
response to this disclosure, the judge, defense counsel, and the prosecutor all
questioned Juror No. 11 outside the presence of the other jurors.
Juror No. 11 explained her working relationship with A.A. She
disclosed that she and A.A. were both certified nurse aides (CNAs) working at
a local hospital. Roughly 20 to 25 CNAs worked at the hospital. Juror No. 11
18
and A.A. worked the same shift but in different units. A.A. worked “not that
many days a week,” so their “schedules d[id]n’t interact that often.” As a
result, in the approximately two years since A.A. joined the hospital, she and
Juror No. 11 had “talked . . . maybe five times,” and then only casually. As is
common practice among CNAs, they exchanged phone numbers at some point
so they could message one another if they needed someone to cover a shift.
Although each had asked the other to cover a shift at least once, neither ever
did so. Ultimately, Juror No. 11 did not “know [A.A.] well” and “ha[d not]
seen her since . . . last year.” Other than knowing A.A. was a student, Juror
No. 11 “d[id not] know anything about her family” or “her situation.”
When the judge asked Juror No. 11 if her work relationship with A.A.
“might affect [her] ability to be unbiased about [A.A.’s] testimony,” Juror
No. 11 responded, “No.” She further said their relationship would “not
necessarily” “make [her] automatically assume what [A.A.] is saying is true”
or “affect her jury service in any way.” The prosecutor asked if Juror No. 11
would give A.A.’s testimony “any more preference or weight because [she]
know[s] her,” and Juror No. 11 said, “I’m probably going to treat her just like
I treated this witness I just saw, so – I don’t know.” When asked why, Juror
No. 11 explained that the case “is a story [she was] not a part of” and
“ha[d not] heard anything about,” so she did not believe A.A.’s testimony
“w[ould] impact . . . what [she would] take into consideration.” She “want[ed]
to say” she would not consider “[A.A.’s] personal background, . . . but that’s
up for you guys to decide.”
Defense counsel requested Juror No. 11 be excused. She argued Juror
No. 11 and A.A.’s relationship was “more than . . . casual,” and because A.A.
“is half the case basically for the prosecution,” “her credibility [was] of grave
19
importance.” Defense counsel “c[ould] guarantee” she “would have exercised
a peremptory” to excuse Juror No. 11 had she known this information earlier.
The court decided Juror No. 11 could remain on the jury. It reasoned,
while “[w]e ask about the names of witnesses” during voir dire, “people don’t
always know people by name but know people by face,” so it was “strange,
though understandable perhaps,” that Juror No. 11 did not raise the issue
earlier. The court weighed the potential for juror bias but concluded the
situation did not rise to that level. The court also did not perceive any
“misconduct, so [it did] not find[ ] good cause to excuse [Juror No. 11].”
After A.A. testified, defense counsel requested the court reconsider its
decision. The court said it “found the juror credible when she said that she
could treat the witness as she would anybody else.” Noting the two had “at
most five conversations,” were “not close,” and had never covered a shift for
the other, the court determined this was not “the type or close enough of a
relationship that . . . would . . . be good cause” to remove Juror No. 11.
B.
If, upon “good cause shown,” a juror is found to be “unable to perform
his or her duty,” the court may discharge the juror. (Pen. Code, § 1089.) “The
trial court’s decision whether or not to discharge a juror under section 1089 is
reviewed for abuse of discretion and will be upheld if supported by
substantial evidence; to warrant discharge, the juror’s bias or other disability
must appear in the record as a demonstrable reality.” (People v. Holloway
(2004) 33 Cal.4th 96, 124-125.)
A court abuses its discretion when it exercises it in an arbitrary,
capricious, or patently absurd manner that results in a manifest miscarriage
of justice. (People v. Williams (2013) 58 Cal.4th 197, 270-271 (Williams).)
Substantial evidence supports a decision if, upon “review[ing] the whole
20
record in the light most favorable to the judgment,” there is “evidence that is
reasonable, credible, and of solid value” underlying the challenged act.
(People v. Stanley (1995) 10 Cal.4th 764, 792 (Stanley).)
C.
Brooks claims Juror No. 11 should have been excused. He argues Juror
No. 11 and A.A. saw one another at work and “had each other’s phone
numbers and would ask for favors from each other.” When questioned
whether she could remain impartial given this acquaintanceship, A.A. gave
“equivocal” answers. Brooks also contends A.A.’s role as “the main percipient
witness” and someone who “had actually involved herself in the incident”
made A.A.’s credibility “crucial.” Given these circumstances, Brooks argues
the court erred in denying his request to remove Juror No. 11 from the jury.
We, however, disagree. Substantial evidence supports the trial judge’s
determination that Juror No. 11 was not biased to the point she could not
fulfill her duties. The court found the relationship insufficiently close to
establish good cause, noting Juror No. 11 and A.A. were “not close,” had
“at most five conversations” during the roughly two years they had worked
together, and had never done each other a favor by covering each other’s
work shifts. The court expressly found credible Juror No. 11’s statement she
would treat A.A. like any other witness―which, contrary to Brooks’ claim, is a
statement Juror No. 11 made. This is “credible” and “solid” evidence
supporting the refusal to excuse Juror No. 11. (Stanley, supra, 10 Cal.4th at
p. 792.) We find ineffectual Brooks’ efforts to distinguish other cases where
courts have rejected a claim of purported bias based on mere
acquaintanceship. In the absence of a relationship establishing demonstrable
bias, A.A.’s importance to the prosecution’s case is irrelevant.
21
Moreover, when a “juror’s statements are conflicting or equivocal, the
trial court’s determination as to the juror’s actual state of mind is entitled to
deference.” (Pen. Code, § 1089; People v. Schmeck (2005) 37 Cal.4th 240, 262-
263.) This is because “the trial judge who sees and hears the juror” may be
“left with the definite impression” of the juror’s ability to execute his or her
duties “[d]espite [a] lack of clarity in the printed record.” (Wainwright v. Witt
(1985) 469 U.S. 412, 425.) Here, despite Juror No. 11’s less-than-definite
statements under questioning, the court explicitly found credible her
statement that she would not treat A.A.’s testimony differently from any
other witness’s. We cannot disturb that finding on appeal.
On this record, we cannot conclude the trial court abused its discretion
in denying Brooks’ request to exclude Juror No. 11. As the court reasonably
supported its decision, it did not exercise its discretion in a patently absurd
manner resulting in a miscarriage of justice. (Williams, supra, 58 Cal.4th at
pp. 270-271.) We thus reject Brooks’ second claim of error.
DISPOSITION
We affirm.
CASTILLO, J.
I CONCUR:
HUFFMAN, Acting P. J.
22
DO, J., Concurring.
I join the majority in affirming the judgment of conviction. But I part
ways with my colleagues in their conclusion that a witness’s assertion of her
privilege against self-incrimination may properly be sustained without her
personally appearing before the court, being sworn as a witness, and
questioned. Nor am I able to join in the majority’s conclusion that once a
witness invokes outside the presence of the jury, the prosecution is then
entitled to an instruction that informs the jury the witness has invoked her
Fifth Amendment rights, only to tell it to disregard the invocation, all for the
supposed purpose of avoiding the prejudicial impact of the invocation.
A.
It has been the “well established” rule for more than a century that “in
order to assert the privilege against self-incrimination a witness must not
only be called but must also be sworn.” (People v. Ford (1988) 45 Cal.3d 431,
440 (Ford), citing Ex parte Stice (1886) 70 Cal. 51, 53 and People v. Harris
(1979) 93 Cal.App.3d 103, 117 (Harris).) Thus “ ‘[before] a claim of privilege
can be sustained, the witness should be put under oath and the party calling
him be permitted to begin his interrogation. Then the witness may invoke
his privilege with regard to the specific question and the court is in a position
to make the decision as to whether the answer might tend to incriminate the
witness.’ ” (Ford, at p. 441, quoting Harris, at p. 117.)
As Ford explained, “The primary reason for the requirement that the
witness be called and sworn was set forth by this court more than a century
ago in Ex parte Stice, supra, 70 Cal. 51, 53: ‘It is no answer to a refusal to be
sworn that the petitioner asserted at the time as a reason for such refusal
that his testimony would have a tendency to subject him to punishment for a
felony. Such a privilege cannot be urged by the witness until a question is
put to him after being sworn, the answer to which would have the tendency
stated above. Whether the answer to such question would or might be of
such tendency, the court in which the trial is proceeding must adjudge
[citation], and it cannot be called on to do so in advance of the question being
put. To hold that the reason stated above would justify a person called in
refusing to be sworn would be to make such person, and not the court, the
final judge, and exclude the court from any consideration of the matter
whatever. Such is not and cannot be the law.’ ” (Ford, supra, 45 Cal.3d at
p. 440, italics added.)
Despite the clarity with which the California Supreme Court spoke in
Ford, my colleagues in the majority describe the Court’s discussion of the
longstanding procedural “requirement that the witness be called and sworn”
to answer specific questions before a claim of privilege can be sustained
(Ford, supra, 45 Cal.3d at p. 440) as “seemingly definitive statements” from
35 years ago that require “context” (maj. opn., at p. 10). After doing so, the
majority announces a new rule: “[S]o long as the trial judge has the
information necessary to assess the existence of the privilege” (maj. opn., at
p. 10), the court may abandon the process that Ford said is a “prerequisite to
[the] exercise of the privilege” (Ford, at p. 440).
I disagree. For one, I believe the majority’s new rule is a departure
from binding decisions of the California Supreme Court. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For another, the majority’s
new rule relaxes the procedural hurdles for determining the validity of a
witness’s invocation of the privilege, which stands to make it easier for
witnesses to avoid testifying.1 This will almost certainly have consequences
1 Witnesses and victims are often times reluctant to testify in a criminal
trial, particularly in domestic violence and gang-related cases. The record in
2
for litigants’ ability to compel witness testimony, consequences that (in the
criminal context) could flow to either the prosecution or the accused.
I also find the majority’s effort to limit Ford (and by extension Ex parte
Stice) to be unpersuasive. The defendant in Ford testified to an alibi that
certain former codefendants were with him when the crime was committed.
(Ford, supra, 45 Cal.3d at pp. 436−437.) In closing argument, the prosecutor
commented that Ford had not called those former codefendants. (Id. at
p. 438.) The trial court granted a motion for a new trial based on the
unsupported conclusion the codefendants would have exercised their rights
against self-incrimination and that any comment upon such invocation was
barred by Evidence Code section 913. (Ford, at pp. 438−439.)
The Ford court concluded it was error to grant a new trial, rejecting the
defendant’s assertion that “whenever a witness is or was a ‘codefendant’ who
may exercise the privilege against self-incrimination the witness must be
deemed ‘unavailable.’ ” (Ford, supra, 45 Cal.3d at p. 439.) The Supreme
Court explained that “[s]uch a rule assumes without foundation that any
testimony of a codefendant would necessarily incriminate the codefendant,
and fails to recognize well established principles governing exercise of the
privilege.” (Ibid., italics added.) In other words, because the witnesses had
not been called and sworn to answer specific questions, the trial court was in
no position to determine whether there was a valid basis for the witnesses to
assert the privilege. (See id. at p. 436 [each witness “could have exercised the
privilege against self-incrimination had he been called by defendant as a
this case illustrates this difficulty. The prosecutor noted, in her experience,
that “almost in all” domestic violence cases, including the present case, the
alleged victim is afraid to testify against the defendant, which often results in
the victim recanting previous accusations of violence.
3
witness at the trial of defendant if answering the questions put to him could
possibly have had a tendency to incriminate the witness”].)
The majority contends this “context” in the Ford decision is what
“informed the Supreme Court’s holding that a witness must be called and
sworn.” (Maj. opn., at p. 10.) In my view, this gets it backward. It was the
settled rule that a witness must be called and sworn as a prerequisite to
establishing the validity of an invocation of a witness’s right against self-
incrimination that informed the Ford court’s holding that “[b]ecause [the]
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.” (Ford, supra, 45 Cal.3d at p. 436.)
Believing themselves unconstrained by Ford or Ex parte Stice, the
majority instead relies on People v. Apodoca (1993) 16 Cal.App.4th 1706
(Apodoca) as support for its pronouncement that there is “flexibility in how a
witness may validly assert his or her privilege against self-incrimination so
long as the trial judge has the information necessary to assess the existence
of the privilege.” (Maj. opn., at p. 10.) The majority reasons Apodoca lends
support to its conclusion that a lawyer appointed for the victim in this case
can properly assert her privilege to refuse to testify, although she never
personally appeared before the court, was never sworn, and was never asked
a single question. I believe the majority’s reliance on Apodoca is misplaced.
Apodoca does not support the majority’s new rule that “so long as the
trial judge has the information necessary to assess the existence of the
privilege,” a court may disregard the process of having the witness personally
appear before the court, sworn, and questioned before an assertion of
privilege can be sustained. That process was observed in Apodoca.
4
Unlike here, in Apodaca the witness was on the stand testifying outside
the presence of the jury when her counsel interjected, after the prosecutor
asked a potentially inculpating question, to expressly invoke the privilege
against self-incrimination on her behalf. (Apodaca, supra, 16 Cal.App.4th at
p. 1713.) Because “the witness appeared, was sworn, placed on the stand,
and was asked a specific question,” and “[t]he privilege was asserted as to
specifically identifiable matter which the trial court correctly assessed as
having the potential to incriminate” the witness, the Court of Appeal rejected
the defendant’s contention that the witness was required to “personally”
invoke the privilege. (Id. at p. 1714.) The court concluded “[i]t would be a
wasteful exercise to insist that [the witness] repeat the invocation out of her
own mouth under these circumstances, simply for the sake of formality.” (Id.
at p. 1715, italics added.) It is in this context that the court then also stated,
“If the lawyer is clearly acting under the authorization of the client, and
invokes the client’s privilege, there is little point or sense in insisting that the
client also personally invoke the privilege.” (Ibid.)
The unique circumstances in Apodoca are also not presented here.2
And even Apodoca recognized that absent such circumstances, “a witness
must first be placed under oath, take the stand and actually refuse to answer
an incriminatory question. [(Ford, supra, 45 Cal.3d at p. 440.)] This is
because the assertion of the privilege cannot be made in a vacuum. The
privilege applies only to matter which is incriminatory; it is the court’s duty
to judge whether a particular question put has the tendency to subject the
2 For example, R.J., the witness at issue here, remained outside the
courtroom the two days she was “present” while her appointed counsel
assertedly invoked the privilege on her behalf. Thus the trial court never
spoke with her, other than to bring her into the courtroom to order her back
and ultimately to excuse her.
5
witness to punishment for crime. It cannot do so in advance of an actual
question being put. . . . (Ibid.)” (Apodoca, supra, 16 Cal.App.4th at p. 1714.)
Finally, I disagree with the majority that the trial court “already had
sufficient information” to determine R.J. had a valid basis to assert the
privilege to refuse to testify “without the need for R.J. to take the stand.”
(Maj. opn., at pp. 15–16.) All we have here is a colloquy between the trial
court and R.J.’s appointed counsel, in which appointed counsel explicitly
declined to “get[ ] into the specifics” of R.J.’s assertedly incriminating
conduct, and the court stating it was “not asking [him] to disclose any
particular conduct” by R.J. Left to fill in some of the gaps, it was the trial
court that speculated perhaps R.J. may incriminate herself with “substance-
related conduct.” In my view, this is not an adequate record for a reviewing
court to determine that the trial court properly sustained an assertion of
privilege, which is yet another reason the process matters.
People v. Cudjo (1993) 6 Cal.4th 585, 616 (Cudjo) demonstrates this
point. In Cudjo, a witness named Gregory was called by the prosecution to
testify during a foundational hearing out of the jury’s presence. After
Gregory was sworn, the prosecutor asked him whether he intended to answer
any questions about the murder with which the defendant was charged, and
whether he had conversed with the defendant about a crime the defendant
committed near the crime scene on the day of the murder. Gregory, who had
been one of the murder suspects, “refused to answer each question, expressly
grounding his refusal on the privilege against self-incrimination.” (Id. at
pp. 616−617, italics added.) The Supreme Court rejected the defendant’s
contention that even though Gregory “intended to assert the privilege,
Gregory did not sufficiently establish that he was entitled to do so.” (Id. at
p. 617.) The Court found Gregory was entitled to assert the privilege because
6
his “[a]nswers to the prosecution’s questions . . . could have developed
evidence tending to establish Gregory’s own complicity in the victim’s death.”
(Ibid., italics added.)
Although I agree Brooks did not object and thereby failed to preserve
his claim that the trial court erred by finding the victim had properly invoked
her privilege against self-incrimination (see People v. Smith (2007) 40 Cal.4th
483, 517 (Smith) [“A defendant may not challenge, for the first time on
appeal, the procedure used by the trial court to find a witness unavailable.”];
accord Harris, supra, 93 Cal.App.3d at p. 118), I see no reason to depart from
the longstanding rule established by our Supreme Court in Ex parte Stice and
confirmed in Ford that a witness must personally appear before the court, be
sworn and questioned before an assertion of the privilege against self-
incrimination is sustained.
B.
A jury is not permitted to draw any inferences, for or against either the
prosecution or the defense, from a witness’s decision to invoke her Fifth
Amendment privilege to refuse to testify. (See Evid. Code, § 913, subd. (b).)
Born of the precept that a jury may not draw inferences from a witness’s
decision to invoke the privilege “is the equally important rule that no
mention of this decision is to be made in the presence of the jury, thereby
raising the possibility that an improper inference may be drawn from it.”
(United States v. Sircovich (5th Cir. 1977) 555 F.2d 1301, 1302, citing Bowles
v. United States (D.C. Cir. 1970) 439 F.2d 536.)
Our Supreme Court has consistently held that “permitting the jury to
learn that a witness invoked the privilege against self-incrimination serves
no legitimate purpose and may cause the jury to draw an improper inference
of the witness’s guilt or complicity in the charged offense.” (Cudjo, supra,
7
6 Cal.4th at p. 619, italics added; Smith, supra, 40 Cal.4th at pp. 516−517;
People v. Mincey (1992) 2 Cal.4th 408, 441.) For this reason, trial courts are
encouraged to observe the better practice of requiring the exercise of privilege
out of the presence of the jury. (Smith, at pp. 516−517.)
Here, defense counsel objected to the trial court instructing the jury
with CALCRIM No. 320 on the basis that R.J. asserted her privilege outside
the presence of the jury: “It would be discussing something that they did not
see happen and that they’re completely unaware of.” The prosecutor insisted
it was entitled to CALCRIM No. 320 because it was “the victim of the case,
one of the most predominant witnesses in the case” and not some generic
witness, who had asserted the privilege. The prosecutor argued the People
were entitled to an explanation for failing to call the victim as a witness. The
prosecutor offered no legal authority to support this position, and I am aware
of none. Moreover any concerns the prosecutor had about weaknesses in its
case for failing to call the victim was addressed by CALCRIM No. 300
(“Neither side is required to call all witnesses who may have information
about the case or to produce all physical evidence that might be relevant.”),
which the trial court gave.
The majority, however, concludes that because R.J. asserted her
privilege against self-incrimination outside the presence of the jury, the
prosecution was also (that is, in addition to CALCRIM No. 300) entitled to an
instruction that informed the jury that R.J. had invoked her Fifth
Amendment rights, only to tell it to disregard the invocation, all for the
supposed purpose of avoiding the prejudicial impact of the invocation. This is
illogical.
People v. Stewart (2004) 33 Cal.4th 425 (Stewart) is dispositive. The
trial court there denied a defendant’s request to instruct the jury that it
8
should draw no inference from an invocation of the privilege against self-
incrimination of which the jury was otherwise unaware. The trial court
reasoned the defendant “had no right to the proposed instruction” because
“there was no evidence before the jury that [the witness] had exercised his
Fifth Amendment privilege, and because the jury would be instructed,
pursuant to [former] CALJIC No. 211, that ‘[n]either side is required to call
as a witness all persons who may have been present at any of the events
disclosed by the evidence or who may appear to have some knowledge of
these events[.]’ ” (Id. at pp. 472−473.) The prosecutor in Stewart, “arguing
against [the] defendant’s motion, aptly observed that defendant essentially
was asking that the jury be told, ‘Here’s something irrelevant [under
Evidence Code, section 913, subdivision (a)] . . . . Now that I’ve told you
about, it, don’t consider it.’ ” (Id. at p. 473.) And on appeal, the People in
Stewart argued if the jury has never been told or observed that the privilege
has been exercised, “ ‘then there is no possibility that an “unfavorable
inference may be drawn by the jury because a privilege has been
exercised.” ’ ” (Id. at pp. 473–474.) The California Supreme Court agreed,
holding that “under the circumstances presented, Evidence Code section 913,
subdivision (b) did not afford defendant a right to the instruction he sought.”
(Id. at p. 474.)
So too here. The prosecutor was not entitled to CALCRIM No. 320 and
the trial court erred in giving it. I conclude, however, that the error was
harmless under People v. Watson (1956) 46 Cal.2d 818, 836 [reversal required
only if it is reasonably probable a result more favorable to the appealing
party would have been reached absent the error]; see Stewart, supra,
33 Cal.4th at p. 474 [concluding error in instructing with similar instruction
was harmless under Watson standard].) Two eyewitnesses watched Brooks
9
assault R.J. and the first responders’ observations of her injuries established
he had inflicted “significant blunt force trauma” on her.
C.
For these reasons, I concur in the majority’s decision to affirm the
judgment of conviction only.
DO, J.
10