Prosecution was not required to grant use immunity to prosecution witness who invoked his right against self-incrimination at trial instead of introducing the witness’s preliminary hearing testimony under Evidence Code section 1291. Hull was charged with assaulting Chatman and two other men. Chatman testified at the preliminary hearing but invoked his right against self-incrimination at trial and did not testify. Over Hull’s objection, the prosecution’s motion to introduce Chatman’s preliminary hearing testimony under section 1291 was granted. Hull was convicted of one of three counts and appealed. Held: Affirmed. Section 1291 and the confrontation clause allow the introduction of prior testimony when a witness is unavailable and certain conditions are met. A witness is unavailable if he properly invokes the privilege against self-incrimination. Such a witness can be made available if the prosecutor grants him immunity; California courts have no power to confer judicial immunity. If defendant can show that the prosecutor refused to grant immunity with the deliberate intention of distorting the judicial fact-finding process, a retrial is necessary. (People v. Masters (2016) 62 Cal.4th 1019.) At retrial, the prosecution may be ordered to grant statutory use immunity or face a judgment of acquittal. There are five factors used to evaluate whether refusal to grant immunity to a defense witness constitutes prosecutorial misconduct: (1) immunity was properly sought in the trial court; (2) the witness was available; (3) the proffered testimony was clearly exculpatory; (4) the testimony was essential; and (5) there were no governmental interests countervailing against a grant of immunity. Here, Chatman’s testimony was not clearly exculpatory (instead it was inculpatory). It was not essential and was instead purely speculative, relating only to his credibility. His testimony merely confirmed other witnesses’ testimony and the jury was properly instructed on his impeachable prior conviction. Because Hull did not demonstrate any benefit from Chatman’s live testimony, the prosecutor was not required to articulate a countervailing governmental interest.

Trial court did not err in admitting witness’s preliminary hearing testimony under Evidence Code section 1291 and the confrontation clause. Hull also argued the trial court erred in admitting Chatman’s preliminary hearing testimony because the defense did not have the opportunity to cross-examine Chatman about a prior criminal conviction not disclosed by the prosecution until after the preliminary hearing or about alleged threats made to Hull’s wife the day after his arrest. The Court of Appeal disagreed. Section 1291, subdivision (a)(2), allows introduction of prior testimony when “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” The motives need not be identical, only similar. Testimonial statements of a person who does not testify at trial are admissible against a criminal defendant over a confrontation clause objection when (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine. After analyzing the facts, the court concluded Hull’s motive in cross-examining Chatman at the preliminary hearing was sufficiently similar to his objective in cross-examining Chatman at trial. He also had an opportunity to cross-examine Chatman about the alleged threats against his wife because he knew about the potentially impeachable information well before the preliminary hearing even if defense counsel was not actually aware of it at the preliminary hearing. The court did not decide whether Hull was deprived of an opportunity at effective cross-examination as a result of the prosecution’s failure to disclose Chatman’s prior conviction before the preliminary hearing because any error on this point was harmless beyond a reasonable doubt.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C079134.PDF