Stanford Law School - Robert Crown Law Library

Filed 7/7/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S123790
v.
Ct.App. 2/7 B160209
LARRY SEIJAS,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. SA043730

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
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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.
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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]
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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
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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
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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 immunity and . . . defense attorneys get up in opening statements, closing
argument and cross-examination, and they intimate that the People of the State of
California, that the prosecution is buying witnesses to the grant of immunity, that
the only reason that [Jonathan] is coming forward in this case is because he’s now
been granted immunity from these crimes, which is, of course, ridiculous in this
case as we did in all other cases where we had no intention to immunize.” The
court responded that it was “not only ridiculous, it would be improper for [defense
counsel] to make that argument. I won’t allow him to make the argument. It
would be contrary from what we know the facts to be. We know [defense
counsel] is the person who asked to have this witness be given immunity. That is
something the jury can find out about if for some reason he tries to intimate that
something else has occurred. So that . . . should not be a concern of yours.”
Defense counsel objected to the court’s “influencing potentially the district
attorney’s decision about immunity . . . . I don’t think it’s proper whether the
court believes it’s ridiculous or not. That’s not the issue. That’s why we have a
jury. And I think it’s highly improper by the court to do exactly what the court is
doing. . . . Whether it’s the court giving an advisory opinion or not, I find it very
improper to say that [I] can’t have it both ways. I can have it both ways because
. . . every witness has the potentiality of incriminating himself. And the record is
clear. That’s exactly what [Jonathan] potentially is doing. So it’s not just a ploy
by the defense to try to buy time or . . . argue that the prosecutor is buying
witnesses. He has rights, and they should be protected. And the court should see
that they are protected adequately. The court should not be saying this is an
inconvenience issue and doesn’t make sense to the court why, on a little
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misdemeanor, but the court doesn’t know the facts.” He added that there “was
evidence that [Jonathan] potentially was the shooter. I think [Jonathan’s attorney]
should know that. It’s in the murder book. . . . [T]here’s information in the
murder book that word on the street is that a little kid [was] with the shooting and
was trying to get jumped into the gang and make a name of himself. So if you ask
me on the record is this some little tactic by the defense, I think that’s wrong. . . .
[W]hat I really don’t like is that the district attorney’s office I think is playing
games. We want it both ways. We want the jury to hear that they’re not giving
him immunity even though they have whatever discretionary call they have. But
at the same time, ‘We’re not buying witnesses.’ ” He also said that he was “here
to protect the record as to Mr. Seijas. But I’m also here to make sure that
[Jonathan] isn’t thrown to the wolves.”
The prosecutor responded. He said he did not make the final decision on
whether to prosecute someone. He also said that as far as he knew, defendant
himself had “told some people that it was a minor who was involved, and that’s
where that rumor started.” He said that if the defense’s position was that Jonathan
was involved in the murder, “that changes the stakes entirely. And if they’re
going to argue to the jury that now we are protecting [Jonathan] and buying him
from this murder case in order to prosecute [defendant], that gravitates much
further in the direction of not offering immunity with that kind of argument.” He
added that when the court said it might prevent the defense “from talking about the
immunity issue, . . . my perspective changed almost entirely. I was going to go
call my supervisor and rediscuss the issue with her. If the defense can’t claim that
we bought this witness through immunity, then that changes everything. And I
agree with the court that the argument seemed to appear stronger at that point to
put [Jonathan] on the stand and let the jury judge him . . . . But if now, based on
these hearsay rumors that I believe were started by the defendant and his fellow
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gang members, that there’s an argument that he could be held responsible for the
murder, that makes it even that much more important that we not be accused of
buying this witness. But in any event, [defense counsel’s] position is that he will,
if [Jonathan] testifies, bring up the fact of this immunity and impeach him on it,
then my position will not change on that.”
The court noted that defendant would be entitled to argue to the jury any
immunity Jonathan received, but it would not permit defense counsel “to argue
something that would not be correct as we know it,” including that any immunity
was “the district attorney’s idea.” Defense counsel said that he had raised the
question of immunity only to protect Jonathan’s rights.
At the next court hearing, Jonathan’s attorney informed the court that she
was advising him to assert the privilege against self-incrimination unless the
prosecution gave him immunity. The prosecutor reiterated that the prosecution
would not give Jonathan immunity. Jonathan was then sworn as a witness out of
the presence of the jury, and he did assert the privilege. The court asked
Jonathan’s attorney whether, in her “professional judgment and as an officer of the
court,” she believed Jonathan was validly exercising the privilege. She said she
did so believe. The court stated that Jonathan may have committed the
misdemeanor of making a false statement to a police officer under Penal Code
section 148.5 and possibly was liable as an accessory under Penal Code section
32.
At this point, the prosecutor suggested he might be willing to give Jonathan
immunity for a crime under Penal Code section 148.5 and possibly also Penal
Code section 32. He asked “if the defense position is would he be willing to
testify if we offered him immunity on strictly the 148.5 and maybe the court’s
position on the 32 P.C. or is she—is their position that the 5th Amendment right is
extending to the murder?” Defense counsel said, “The issue is he said he’s taking
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his 5th. That’s it. I have no other questions to ask with respect to [Jonathan].”
The prosecutor again asked whether Jonathan would be willing to testify if he
received immunity for a Penal Code section 148.5 charge. Defense counsel (and
not Jonathan’s attorney) responded, “I have read the entire preliminary hearing
transcript, and I’ve discussed it at length, and no. No. The answer is no.” The
prosecutor said that immunizing Jonathan for the murder “complicates things a lot
more for us.” He also discussed Jonathan’s personal situation regarding gang
members and believed that Jonathan would be better off if the members heard that
he had refused to testify. Ultimately, he did not offer to grant any immunity to
Jonathan.
The court found Jonathan “unavailable as a witness in this case in that upon
advice of counsel he has testified under oath that he would exercise his privilege
under the 5th Amendment.” Then, over defendant’s objection on grounds
unrelated to whether the court should have permitted Jonathan to assert the
privilege, the court admitted Jonathan’s preliminary hearing testimony at trial.
After conviction and sentencing, defendant appealed. The Court of Appeal
held that the trial court erred in permitting Jonathan to assert the privilege against
self-incrimination. Accordingly, it concluded that the trial court’s declaring
Jonathan unavailable and admitting his preliminary hearing testimony denied
defendant his constitutional right to confront witnesses. The court found the error
in admitting the preliminary hearing testimony prejudicial and reversed the
judgment.
We granted the Attorney General’s petition for review.
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II. DISCUSSION
A. Whether the issue regarding the trial court’s permitting the witness
to assert the privilege against self-incrimination is cognizable on
appeal
The Court of Appeal reversed the judgment because it found that the trial
court erred in permitting Jonathan to assert the privilege against self-incrimination
and, for this reason, also erred prejudicially in admitting his preliminary hearing
testimony. Originally, defendant did not argue the trial court erred in this regard
but did so only after the Court of Appeal raised the issue on its own motion and
solicited briefing from the parties. That defendant did not himself “raise the issue
on appeal is understandable. He was precluded from doing so by his failure to
preserve the point by appropriate objection in the trial court . . . .” (People v.
Rogers (1978) 21 Cal.3d 542, 547.)
Defense counsel originally suggested that the court should appoint an
attorney to advise Jonathan regarding the privilege against self-incrimination.
Moreover, even after the court did appoint an attorney for Jonathan, defense
counsel argued that Jonathan had to be given immunity. He also argued that he
could cite any immunity to challenge Jonathan’s credibility in front of the jury.
Indeed, he said that Jonathan’s attorney should know that there was evidence
implicating Jonathan in the murder itself. Later, even though Jonathan was
represented by his own attorney, defense counsel answered a question from the
district attorney by saying that Jonathan would not testify unless immunized for
the murder as well as for a violation of Penal Code section 148.5. Implicit in all of
these statements was that Jonathan’s testimony would be self-incriminating.
Defendant never objected to the court’s permitting Jonathan to assert the privilege.
We have long held that a party who does not object to a ruling generally
forfeits the right to complain of that ruling on appeal. (E.g., People v. Simon
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(2001) 25 Cal.4th 1082, 1103, and cases cited.) Specifically, a defendant who
fails to object to a court’s permitting a witness to assert the privilege against self-
incrimination may not challenge the ruling on appeal. (People v. Malone (1988)
47 Cal.3d 1, 34-35; People v. Dimitrov (1995) 33 Cal.App.4th 18, 31-32.) This
bar “is but an application of the general rule that questions relating to the
admissibility of evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground sought to be urged on
appeal. (See Evid. Code, § 353 . . . .)” (People v. Rogers, supra, 21 Cal.3d at p.
548.)
Defendant argues that he did object at trial to admitting Jonathan’s
preliminary hearing testimony. He did do so, but on different grounds. He never
objected to the trial court’s permitting Jonathan to assert the privilege. The
grounds on which defendant did object, which are not before us on review, are not
forfeited, but this particular ground is. “A verdict or finding shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless: [¶] (a) There appears of record an
objection to or a motion to exclude or to strike the evidence that was timely made
and so stated as to make clear the specific ground of the objection or motion . . . .”
(Evid. Code, § 353, italics added.) In accordance with this statute, we have
consistently held that the “defendant’s failure to make a timely and specific
objection” on the ground asserted on appeal makes that ground not cognizable.
(People v. Green (1980) 27 Cal.3d 1, 22 [objection on ground that questions were
leading does not preserve appellate argument that the evidence was impermissible
evidence of other crimes]; see also People v. Rogers, supra, 21 Cal.3d at pp. 547-
548.)
Defendant also argues that Penal Code section 1259 permits him to raise
this question. It does not. That section provides: “Upon an appeal taken by the
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defendant, the appellate court may, without exception having been taken in the
trial court, review any question of law involved in any ruling, order, instruction, or
thing whatsoever said or done at the trial or prior to or after judgment, which thing
was said or done after objection made in and considered by the lower court, and
which affected the substantial rights of the defendant. The appellate court may
also review any instruction given, refused or modified, even though no objection
was made thereto in the lower court, if the substantial rights of the defendant were
affected thereby.” (Italics added.) This section distinguishes claims of
instructional error, which may be asserted even without objection if they affect the
defendant’s substantial rights, from other claims of error, which require a trial
objection. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.)
Defendant also argues that his attorney was acting in his general capacity as
an officer of the court, and not in his capacity as defense counsel, when he
suggested the court appoint an attorney to represent Jonathan and argued that
Jonathan was entitled to immunity. He may have been so acting when he
originally suggested the court appoint counsel for Jonathan (a point we need not
consider in detail). Simply suggesting that the witness might need an attorney did
not cause this claim to be forfeited. Rather it was defendant’s failure ever to
object on this ground that makes it not cognizable on appeal.
The issue that the Court of Appeal addressed “may not, for the reason
stated, be reviewed in this appeal.” (People v. Rogers, supra, 21 Cal.3d at p. 548.)
Moreover, as we explain, even if the issue were reviewable, we would find no
error under the specific facts that confronted the trial court.
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B. Whether the trial court erred in permitting Jonathan to assert the
privilege against self-incrimination
1. Background
Although defendants generally have the right to confront their accusers at
trial, this right is not absolute. “If a witness is unavailable at trial and has testified
at a previous judicial proceeding against the same defendant and was subject to
cross-examination by that defendant, the previous testimony may be admitted at
trial.” (People v. Smith (2003) 30 Cal.4th 581, 609; see Evid. Code, § 1291, subd.
(a).) The defendant “must not only have had the opportunity to cross-examine the
witness at the previous hearing, he must also have had ‘an interest and motive
similar to that which he has at the [subsequent] hearing.’ ” (People v. Smith,
supra, at p. 611.) Under these rules, “we have routinely allowed admission of the
preliminary hearing testimony of an unavailable witness.” (Ibid.) The recent
decision of Crawford v. Washington (2004) 541 U.S. 36, although changing the
law of confrontation in some respects, left these principles intact. “Testimonial
statements of witnesses absent from trial have been admitted only where the
declarant is unavailable, and only where the defendant has had a prior opportunity
to cross-examine.” (Id. at p. 59.) “Where testimonial evidence is at issue . . . the
Sixth Amendment demands what the common law required: unavailability and a
prior opportunity for cross-examination.” (Id. at p. 68.)
A witness who successfully asserts the privilege against self-incrimination
is unavailable to testify for these purposes. (People v. Malone, supra, 47 Cal.3d at
p. 23; Evid. Code, § 240, subd. (a)(1).) Moreover, the fact that Jonathan failed to
assert the privilege at the preliminary hearing does not prevent him from asserting
it at trial. (People v. Malone, supra, at p. 23; Overend v. Superior Court (1900)
131 Cal. 280, 284; People v. Maxwell (1979) 94 Cal.App.3d 562, 570-571.)
However, “[t]o be found unavailable on this ground, a witness must not only
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intend to assert the privilege, but also be entitled to assert it.” (People v. Cudjo
(1993) 6 Cal.4th 585, 616.) The Court of Appeal held that the trial court erred in
finding Jonathan entitled to assert the privilege and, for this reason, reversed the
judgment.
We have never specifically stated the standard of review of a court’s ruling
on a witness’s assertion of the privilege. We review deferentially the trial court’s
resolution of any factual disputes. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
The Attorney General argues that a similar deferential standard applies to the
ultimate ruling that the witness may assert the privilege. We disagree, at least
when the ruling affects a defendant’s right to confront witnesses. When, as here,
the relevant facts are undisputed, an appellate court should review independently
the trial court’s ruling permitting the witness to assert the privilege. In People v.
Cromer, supra, we considered the closely similar question how an appellate court
should review a trial court’s finding that the prosecution exercised due diligence to
locate a missing witness. We found the proper standard to be “independent, de
novo, review rather than the more deferential abuse of discretion test.” (Id. at p.
893.) Much of Cromer’s reasoning applies here. One of the reasons we gave is
that independent review “comports with this court’s usual practice for review of
mixed question determinations affecting constitutional rights.” (Id. at p. 901.)
Here, as in Cromer, the ruling we are reviewing affects the constitutional right of
confrontation. (Id. at p. 896.) We conclude that the independent standard of
review we applied in Cromer to a finding of due diligence also applies to a finding
that the witness could assert the privilege against self-incrimination.
2. Review of the trial court’s ruling.
It is a bedrock principle of American (and California) law, embedded in
various state and federal constitutional and statutory provisions, that witnesses
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may not be compelled to incriminate themselves. In an oft-cited case, the high
court stated that this privilege “must be accorded liberal construction in favor of
the right it was intended to secure.” (Hoffman v. United States (1951) 341 U.S.
479, 486.) A witness may assert the privilege who has “reasonable cause to
apprehend danger from a direct answer.” (Ibid.; accord, Ohio v. Reiner (2001)
532 U.S. 17, 21) However, “The witness is not exonerated from answering merely
because he declares that in doing so he would incriminate himself—his say-so
does not of itself establish the hazard of incrimination.” (Hoffman v. United
States, supra, at p. 486.) The court may require the witness “to answer if ‘it
clearly appears to the court that he is mistaken.’ ” (Ibid.) “To sustain the
privilege, it need only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.” (Id. at pp. 486-487.) To deny an assertion of the
privilege, “the judge must be ‘ “perfectly clear, from a careful consideration of all
the circumstances in the case, that the witness is mistaken, and that the answer[s]
cannot possibly have such tendency” to incriminate.’ ” (Malloy v. Hogan (1964)
378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.)
California’s Evidence Code states the test broadly in favor of the privilege:
“Whenever the proffered evidence is claimed to be privileged under Section 940
[the privilege against self-incrimination], the person claiming the privilege has the
burden of showing that the proffered evidence might tend to incriminate him; and
the proffered evidence is inadmissible unless it clearly appears to the court that
the proffered evidence cannot possibly have a tendency to incriminate the person
claiming the privilege.” (Evid. Code, § 404, italics added.) We have said that this
section incorporates the standard of Hoffman v. United States, supra, 341 U.S.
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479. (People v. Ford (1988) 45 Cal.3d 431, 441-442; see also People v. Cudjo,
supra, 6 Cal.4th at p. 617.)
Applying these standards, we conclude the trial court correctly permitted
Jonathan to assert the privilege under the circumstances. The Court of Appeal
gave two reasons for finding Jonathan should have been forced to testify, neither
convincing.
The court said that “the prosecutor repeatedly assured the trial court the
People had no intention of prosecuting Jonathan for the murder or for giving the
police false information about the murder. Given these recurrent representations
to the court, Jonathan could not have reasonably feared prosecution for falsely
identifying Ellis as the killer.” Although we agree that, on this record, an actual
prosecution appears to have been unlikely, the privilege against self-incrimination
does not require, or even permit, the court to assess the likelihood of an actual
prosecution in deciding whether to permit the privilege. The court may not force a
witness to make incriminating statements simply because it believes an actual
prosecution is unlikely. The test is whether the statement might tend to
incriminate, not whether it might tend to lead to an actual prosecution or, stated
slightly differently, whether the statement could, not would, be used against the
witness. (See Evid. Code, § 404.) Forcing a witness to make incriminating
statements whenever the court feels that actual prosecution is unlikely would
impermissibly weaken the privilege against self-incrimination. Use of
incriminating statements must be forbidden, as by a grant of immunity, and not
merely unlikely, before the court may force a witness to make them.
The second reason the Court of Appeal gave that Jonathan would not
incriminate himself is that “California does not recognize ‘lying to the police’ as a
crime.” It concluded that Penal Code section 148.5 (section 148.5) “applies to the
false reporting of a crime, not false statements to the police in the course of their
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investigation of a crime,” and it found that Jonathan had not violated any other
criminal provision, including Penal Code section 148 (section 148). We do not
have to decide definitively whether Jonathan committed a crime in his original lie
to the police. The issue is not whether the testimony does incriminate but whether
it tends to do so, or, as the high court phrased it, whether Jonathan had reasonable
cause to apprehend danger from the testimony. (Hoffman v. United States, supra,
341 U.S. at p. 486.) Under the unusual circumstances of this case, including the
fact that all parties—the prosecution, Jonathan’s own attorney, and defense
counsel—believed that Jonathan’s testimony might be self-incriminating, the court
correctly concluded that he reasonably apprehended danger if he testified.
Section 148 makes it a misdemeanor to “willfully resist[], delay[], or
obstruct[] any . . . peace officer . . . in the discharge or attempt to discharge any
duty of his or her office or employment . . . .” Section 148.5 makes it a
misdemeanor to “report[] to any peace officer . . . that a felony or misdemeanor
has been committed, knowing the report to be false . . . .” These statutes, and the
cases construing them, can cause a person reasonably to apprehend danger from
testifying that he had lied to the police about the identity of a killer’s accomplice.
It may well be, as defendant argues, that merely denying knowledge of a crime
would not violate these statutes. But Jonathan did not merely deny knowledge of
the crime; he lied about the identity of one of the culprits and caused an innocent
person to be arrested. One case said that a “common sense reading” of section
148.5 “suggests that the section is intended to deter false reports of crimes and the
resulting inconvenience and danger to other members of the public . . . .” (Pena v.
Municipal Court (1979) 96 Cal.App.3d 77, 82.) The false report here
inconvenienced Danny Ellis and, by delaying focus on the real cohort, arguably
increased the danger to the public.
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Defendant argues that mere speech does not violate these statutes. He cites
a case stating that section 148 “nearly always has been applied to a wide range of
conduct beyond speech.” (In re Andre P. (1991) 226 Cal.App.3d 1164, 1175.)
But this observation does not mean that mere speech can never violate this section.
Jonathan obstructed the investigation by causing the police to focus on, and even
arrest, the wrong person. Some of the cases strongly suggest that such verbal
conduct might be criminal. “But section 148 ‘is not limited to nonverbal conduct
involving flight or forcible interference with an officer’s activities. No decision
has interpreted the statute to apply only to physical acts, and the statutory language
does not suggest such a limitation.’ ” (In re Muhammed C. (2002) 95 Cal.App.4th
1325, 1329-1330, quoting People v. Quiroga (1993) 16 Cal.App.4th 961, 968.)
Moreover, section 148.5 seeks to avoid “waste of law enforcement time and
money, [and] defamation of innocent reputations . . . .” (People v. Lawson (1979)
100 Cal.App.3d 60, 67.) Accordingly, “there is no rational reason to exclude such
false reports [which falsely implicate another person in a crime] from the purview
of the statute or to believe that the Legislature intended to do so.” (Ibid.)
Under these circumstances, it does not clearly appear that the testimony
could not possibly tend to incriminate Jonathan. (Evid. Code, § 404.) The Court
of Appeal’s after-the-fact disagreement with the parties, even if ultimately correct
as a matter of law (which we need not decide), does not mean Jonathan did not
reasonably apprehend danger at trial. Accordingly, the court acted correctly in
permitting Jonathan to assert the privilege under the circumstances.
C. Habeas corpus petition
After we granted review, defendant filed in this court a petition for writ of
habeas corpus challenging the judgment. (In re Larry Seijas, petn. filed Nov. 23,
2004, S129423.) The petition does not directly relate to the issues on review, and
18

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no reason appears for this court to consider it in the first instance. Accordingly,
we will transfer the petition to the Court of Appeal so that it may consider it
together with any issues remaining on appeal.
“[B]oth trial and appellate courts have jurisdiction over habeas corpus
petitions, but a reviewing court has discretion to deny without prejudice a habeas
corpus petition that was not filed first in a proper lower court.” (In re Steele
(2004) 32 Cal.4th 682, 692; see also People v. Superior Court (Jimenez) (2002) 28
Cal.4th 798, 806, fn. 3; In re Ramirez (2001) 89 Cal.App.4th 1312, 1320; 6 Witkin
& Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, § 20, pp. 540-541.)
Because defendant filed the petition in this court after we had accepted review,
and thus while the case was in this court, he acted reasonably in filing it here to
begin with. Under these circumstances, we have chosen not to deny the petition
without prejudice but instead simply to transfer it to the Court of Appeal.
Similarly, this court has held that one superior court may transfer to another
superior court a habeas corpus petition that is more properly heard by the second
court, even though all superior courts have jurisdiction over habeas corpus.
(Griggs v. Superior Court (1976) 16 Cal.3d 341, 346-347 [“Our conclusion that a
territorial limitation on the exercise of habeas corpus jurisdiction no longer exists
does not mean that this court cannot provide rules of judicial procedure to be
followed by superior courts in the exercise of that unlimited jurisdiction.”].)
19

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III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with our opinion, including resolving any remaining
appellate issues and considering the related petition for writ of habeas corpus.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.

20

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Seijas
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 115 Cal.App.4th 1301
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123790
Date Filed: July 7, 2005
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Katherine Mader

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

A. William Bartz, Jr.
Flier and Flier
3510 Torrance Boulevard, Suite 215
Torrance, CA 90503-4824
(310) 316-6655

Jason C. Tran
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 620-6042

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Opinion Information

Date:	Docket Number:
Thu, 07/07/2005	S123790

Disposition
Jul 7 2005	Opinion: Reversed

Dockets
Apr 2 2004	Petition for review filed   respondent People
Apr 5 2004	Received Court of Appeal record   1 doghouse
Apr 20 2004	Request for depublication (petition for review pending)   respondent People
Apr 22 2004	Answer to petition for review filed   appellant Larry Seijas
Apr 30 2004	Opposition filed   by counsel for aplt. to Request for Depublication.
May 10 2004	2nd record request   remaining recs. ** Overnight Mail **
May 11 2004	Received Court of Appeal record
May 19 2004	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jun 16 2004	Request for extension of time filed   to file opening brief/merits to 7-18-04>>respondent People
Jun 18 2004	Extension of time granted   Respondent's time to serve and file the opening brief on the merits is extended to and including July 19, 2004
Jul 14 2004	Request for extension of time filed   opening brief/merits to 8-18-04>>respondent People
Jul 19 2004	Extension of time granted   Respondent's time to serve and file the opening brief on the merits is extended to and including August 18, 2004. No further extensions are anticipated.
Aug 18 2004	Opening brief on the merits filed   respondent, the people.
Sep 13 2004	Request for extension of time filed   counsel for aplt. requests 60-day extension of time to November 18, 2004 to file the answer brief on the merits.
Sep 15 2004	Extension of time granted   Appellant's time to serve and file the answer brief is extended to and including October 18, 2004.
Oct 12 2004	Request for extension of time filed   counsel for aplt. requests additional time to November 18, 2004, to file the answer brief on the merits.
Oct 14 2004	Extension of time granted   Appellant's time to serve and file the answer brief is extended to and including November 18, 2004. No further extensions of time will be granted.
Oct 25 2004	Change of contact information filed for:   counsel for aplt.
Nov 17 2004	Request for extension of time filed   counsel for aplt. requests extension of time to December 2, 2004, to file the answer brief on the merits.
Nov 23 2004	Answer brief on the merits filed   by counsel for aplt.
Dec 1 2004	Supplemental briefing ordered   The court requests the parties to file supplemental briefs directed to the question whether appellant has preserved for appeal the claim that the trial court improperly permitted Jonathan G. to assert the privilege against self-incrimination.If the Attorney General files a reply brief, that brief may also discuss this question. Otherwise, the Attorney General may file a separate supplemental brief on or before December 21, 2004. Appellant may file a supplemental answer brief limited to this question on or before 20 days after the Attorney General has briefed the question. The Attorney General may file any reply brief limited to this question on or before ten days after appellant has filed the supplemental answer brief.
Dec 3 2004	Request for extension of time filed   to file reply brief/merits & supplemental brfg to 1-12-04>>respondent People
Dec 10 2004	Extension of time granted   Respondent's time to serve and file the supplemental brief and reply briefs is extended to and including January 12, 2005.
Jan 12 2005	Reply brief filed (case not yet fully briefed)   respondent People
Jan 12 2005	Supplemental brief filed   respondent People
Jan 31 2005	Request for extension of time filed   counsel for aplt. requests (20-day) extension of time to February 21, 2005 to file the supplemental answer brief.
Feb 1 2005	Extension of time granted   Appellant's time to serve and file the supplemental answer brief is extended to and including February 21, 2005.
Feb 18 2005	Association of attorneys filed for:   (Larry Seijas) by counsel for aplt.
Feb 22 2005	Supplemental brief filed   counsel for appellant LARRY SEIJAS
Feb 25 2005	Request for extension of time filed   supplemental reply brief to 4-3-05>>respondent People
Mar 4 2005	Extension of time granted   Respondent's time to serve and file the supplemental brief is extended to and including April 4, 2005, No further extensions of time are contemplated.
Apr 1 2005	Case ordered on calendar   5/3/05 @9am, S.F.
Apr 4 2005	Supplemental brief filed   respondent People
May 3 2005	Cause argued and submitted
Jul 7 2005	Opinion filed: Judgment reversed   and Remanded. OPINION BY : Chin, J ---joined by: George, C.J., Kennard, Baxter, Werdegar, Moreno, JJ.
Aug 9 2005	Remittitur issued (criminal case)
Aug 16 2005	Received:   receipt for remittitur from CA 2/7

Briefs
Aug 18 2004	Opening brief on the merits filed
Nov 23 2004	Answer brief on the merits filed
Jan 12 2005	Reply brief filed (case not yet fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website