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Name: People v. Brooks (2024) 99 Cal.App.5th 323
Case #: D080776
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/30/2024

Where the victim in a domestic violence case did not take the stand but asserted a valid Fifth Amendment privilege through counsel, the trial court did not err in instructing the jury with CALCRIM No. 320 regarding her failure to testify. A jury found defendant guilty of both inflicting corporal injury on a domestic partner, R.J., and committing assault by means likely to produce great bodily injury. R.J. did not testify at trial but the court instructed the jury that R.J. had asserted her Fifth Amendment privilege against self-incrimination. On appeal, defendant argued that because R.J. was not called and sworn, and never personally invoked the privilege, she was not legally unavailable to testify. Held: Affirmed. Generally, a witness must be called and sworn in order to invoke their Fifth Amendment privilege. (People v. Ford (1988) 45 Cal.3d 431, 439-440.) However, subsequent decisions show there is flexibility in how a witness may validly assert his or her privilege when the trial court has the information necessary to assess the existence of the privilege, and under certain circumstances, counsel may assert the privilege of behalf of their client. This was the case here. R.J. was the victim of domestic violence in the underlying case, and the court was aware of allegations that R.J. had also assaulted defendant. R.J. received counsel to represent her for the express purpose of protecting her Fifth Amendment interests, which counsel did after consulting with R.J. personally and conveying her refusal to testify as to certain topics absent a grant of immunity. This was sufficient to invoke the privilege, since the trial court already had the information necessary to assess the validity of the privilege. If defense counsel believed the procedure was insufficient, she should have called R.J. to the stand and required her to assert the privilege on a question-by-question basis. Because R.J. validly asserted her privilege, the court did not err in instructing the jury not to consider her failure to testify or speculate as to what she might have said (CALCRIM No. 320). [Editor’s Note: In a concurring opinion, Justice Do disagreed with the majority’s conclusions that (1) 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, and (2) 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.]

The trial court’s decision not to excuse a challenged juror was supported by substantial evidence the juror was not biased. On appeal, defendant argued the trial court abused its discretion in failing to replace an allegedly biased juror, who—on the second day of trial—told the court that she worked as a certified nursing aid at a local hospital with an upcoming prosecution witness. To warrant discharge, the juror’s bias or other disability must appear in the record as a demonstrable reality. Here, substantial evidence supported the trial court’s decision that the juror was not biased to the point that she could not fulfill her duties. Although the juror and the witness had each other’s phone numbers, they were “not close” and in two years had “at most five conversations.” Further, the trial court found credible the juror’s statement that she would treat the witness’s testimony just like any other witness, a finding that cannot be disturbed on appeal.