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Name: People v. Sisneros
Case #: B205535
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 05/21/2009

The trial court properly allowed a witness to be called despite knowledge that she would refuse to testify. In his appeal from his first degree murder conviction, appellant challenged the trial court’s decision to allow the prosecution to call a witness, Luna, knowing that she intended to remain silent and risk being cited for contempt. Luna was previously charged as a codefendant, but had already entered a plea to a lesser charge. When Luna was brought to court and refused to testify, the prosecutor requested that the trial court order her to testify in front of the jury, allowing them to draw negative inferences from her refusal. Over defense objection, the court allowed Luna to be called, and held her in contempt in front of the jury when she refused to take the oath and testify. The jury was instructed that Luna’s appearance was for the limited purpose of providing support for the gang expert’s opinion. Appellant argued that the trial court’s ruling violated Evidence Code section 600, subdivision (b), because there was no admissible, nonspeculative inference which could be drawn from Luna’s refusal. The appellate court rejected the argument. Luna had no Fifth Amendment privilege, and the prosecution was entitled to call her as a witness. Luna’s refusal to take the oath and testify provided strong support for the expert’s opinion that the Mexican Mafia engaged in witness intimidation. The jury was properly instructed to only consider Luna’s appearance for that purpose. Appellant also contended that Luna’s appearance was a violation of his right to confront witnesses. This argument failed because Luna never testified. Appellant also argued that the trial court’s ruling violated Evidence Code section 710 and his right to due process because convictions cannot be based on unsworn testimony. This argument failed also because, as the court instructed, Luna was not a witness and did not testify. Appellant’s Evidence Code section 352 objection was also properly rejected because the refusal to be sworn as a witness was highly probative, and there was no basis to find that the jury considered it for any other purpose than they were instructed.