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Name: People v. Sanders
Case #: B206569
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 02/24/2010

Where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, whether the trial court strikes the testimony or instructs the jury that the refusal can be a factor in assessing credibility depends on whether the testimony involves collateral matters. Appellant was charged with shootings of two victims at a motorcycle club party. Although both victims, as well as other witnesses, positively identified appellant as one of the shooters, identification of the second suspect was subsequently determined to be erroneous. One of the witnesses changed his identification after being advised by other individuals that this subject was not at the party. At trial, the witness refused to identify the individuals who had so advised him. The court denied appellant’s motion to strike the testimony and instead provided wide latitude on cross examination and instructed the jury that the witness’ failure to answer the questions as to the identity could be used in assessing his credibility in all his testimony. The appellate court found no error–where the questions that the witness refuses to answer concern a collateral issue and not a material issue and the witness is fully cross examined as to material issues, there is no violation of the due process right to confront and cross examine. The court also found no error in the sentence imposed, 64 years to life for the two attempted murders and the two Penal Code section 12022.53, subdivision (d) enhancements. Where there are both determinate and indeterminate sentences, the provisions of the Determinate Sentencing Act and Penal Code section 1170.1 do not apply.