Opinion
A jury found Jose Manuel Lopez guilty of assault with a firearm, street terrorism, robbery, possession of a firearm by a felon, and possession of a firearm in violation of probation. It also found he committed the assault with a firearm for the benefit of the Southside criminal street gang (Southside) and personally used a firearm in commission of the robbery. The trial court struck the gang enhancement and sentenced Lopez to eleven years and four months in prison: five years for robbery, four for the personal use of a firearm, one year for assault with a firearm, eight months for street terrorism, and another eight months for possessing a firearm while a felon.
Lopez contends the trial court committed reversible error by (1) not instructing the jury, sua sponte, on the requirements of “active gang membership”; (2) failing to require, sua sponte, juror unanimity as to the predicate offenses underlying the gang enhancement; (3) admitting evidence of an uncharged drive-by shooting; (4) requiring a witness to refuse to testify and finding him in contempt of court in the presence of the jury; (5) denying his request to bifurcate the gang allegations; and (6) simultaneously imposing sentence for his possession of a firearm and personal use of a firearm — a violation of Penal Code section 654. Finally, he complains (7) he was denied the effective assistance of counsel because his trial attorney failed to object when the gang expert called by the prosecution opined the offenses were committed for the benefit of the Southside gang. None of these arguments has merit, and we affirm the judgment. In the published portion of our opinion, we conclude the trial court did not err when it required a gang member to refuse to testify, and then held him in contempt of court, in the presence of the jury.
*
I-III *
IV
To help establish Southside was involved in a pattern of criminal gang activity, as required by Penal Code section 186.22, the prosecutor called Southside veteran Juan Miranda to testify about a gang-related assault he had committed at a Carl’s Jr. about a month before the assault in this case. At the time he was called as a witness, Miranda had already pied guilty to the charge, and the time in which he might have appealed his conviction had passed without an appeal being filed.
Before Miranda took the witness stand, he made it clear he had no intention of testifying against Lopez. Upon being advised of Miranda’s attitude, the court held a hearing outside the presence of the jury and appointed counsel to advise the witness. The court explained Miranda had no right to withhold testimony and no Fifth Amendment privilege left to invoke, but Miranda refused to answer any questions about the events underlying his guilty plea. The court warned that his continued refusal to testify would constitute a contempt of court. But Miranda persisted.
The court then opined, “I don’t think I have any right to prevent [the prosecutor] from calling this man as a witness and putting him on the stand. We’ve taken measures to ensure his rights are protected so far. Put him on the stand, if he invokes the Fifth or whatever he invokes, I can find that it’s inappropriate .... I’ll order him to testify. If he says, No, I’ll find him in contempt.” And so the court did — committing, according to Lopez, reversible error in the process.
Invoking the teaching of our Supreme Court in
People
v.
Mincey
(1992)
It is “the duty of [the] court to determine the legitimacy of a witnesses] reliance upon the Fifth Amendment. [Citation.]”
(Roberts
v.
United States
(1980)
Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. These points are well established by existing case law. (See, e.g.,
People
v.
Mincey, supra,
United States
v.
Hearst
(9th Cir. 1977)
The court responded by observing “. . . appellant’s authorities do not support her proposition. Her cases involve situations in which the government or the defendant questioned a witness or a co-defendant, knowing that a valid, unwaived Fifth Amendment privilege would be asserted. [Citations.] She fails to offer support relating to the very different problem, present in our case, in which the government attempts to cross-examine a witness-defendant who has previously waived his privilege against self-incrimina-tian.”
(United States
v.
Hearst, supra,
The court explained, “When a witness or a defendant has a valid Fifth Amendment privilege, government questions designed to elicit this privilege present to the jury information that is misleading, irrelevant to the issue of the witness’s or the defendant’s credibility, and not subject to examination by defense counsel. [Citation.] Therefore, we do not allow this form of questioning. [¶] But when a defendant [or a witness] has voluntarily waived his Fifth Amendment privilege . . . , the rationale for prohibiting privilege-invoking queries . . . does not apply.”
(United States
v.
Hearst, supra,
No person other than a defendant has a right to refuse to be sworn as a witness
(Vannier
v.
Superior Court
(1982)
In this case, once the trial court was made aware the witness intended to claim a Fifth Amendment privilege, it made the proper inquiries and determined the testimony of the witness would be relevant, and the privilege did not apply. It then ordered Miranda to testify before the jury. Miranda took the stand and refused to answer questions, basing his refusal on a privilege he was not entitled to claim. We find, under these circumstances, that the jury was entitled to consider Miranda’s improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members. This may not have been the purpose for which Miranda was originally called as a witness but it is what he chose to provide, and we see no more reason for excluding it than if he had testified to it directly.
As the United States Supreme Court has observed, “A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.”
(Roberts
v.
United States, supra,
V-VII *
The judgment is affirmed.
Rylaarsdam, Acting P. J., and Seymour, J., † concurred.
Appellant’s petition for review by the Supreme Court was denied August 25, 1999. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.