Opinion
H032558
2-20-2009
THE PEOPLE, Plaintiff and Respondent, v. PAUL INNIS, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Paul Innis was convicted after jury trial of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts 1 & 5), and one count of false imprisonment (§§ 236, 237, subd. (a); count 6). The jury also found true allegations that defendant personally inflicted great bodily injury on a person not an accomplice to one of the robbery offenses, and that he knew that a principal in the commission of the other robbery offense and the false imprisonment offense was personally armed with a firearm. The trial court sentenced defendant to a state prison term of eight years.
Further statutory references are to the Penal Code unless otherwise specified.
Defendants sole contention on appeal is that the trial court erred in admitting pretrial statements by a testifying codefendant implicating defendant because the statements were involuntary. As we disagree with this contention, we will affirm the judgment.
BACKGROUND
Defendant was charged by amended information with five counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1 & 3-6), and one count of attempted robbery (§ 664; count 2). The alleged victims were Kevin Messer (count 1), Gaurang Shah (count 2), Tu Le (count 3), Thu Le (count 4), Munish Kumar (count 5), and Durga Dass (count 6). The information further alleged that defendant personally inflicted great bodily injury on Messer, a person not an accomplice to the offense in count 1 (§ 12022.7, subd. (a)), personally used a rifle or shotgun in the commission of the offense in count 2 (§ 12022.53, subd. (b)), and knew that Benedict Melovidov, a principal in the commission of counts 3 through 6, was personally armed with a firearm in the commission of those offenses (§ 12022, subd. (d)).
The Motion to Exclude Melovidovs Testimony
As part of his motions in limine, defendant moved to exclude any statements made by Melovidov to the police, contending the statements were involuntary. Melovidov had originally been charged along with defendant, his case had resolved, he was serving a prison sentence, and he intended to testify at defendants trial. The testimony at a hearing on defendants motion was as follows:
San Jose Police Sergeant John Seaman testified that he was assigned to investigate a series of armed robberies occurring in San Jose in March 2006. He arrived at a Bonfare Market around 1:00 a.m. on March 24, 2006, about one hour after one incident occurred. Another officer identified Melovidov as someone who had been apprehended inside a Jacuzzi after fleeing the scene. At the time, Melovidov was handcuffed and seated in the back of a patrol car. His clothes were wet, he was cold, and he had a dog bite as a result of his apprehension, but he did not need to be immediately transported because of this.
Sergeant Seaman and Officer Paul Hamblin, who were both in plain clothes, and who were aware that a second suspect was involved in the robbery, opened the door of the patrol car and Officer Hamblin leaned in to speak to Melovidov. As the officers tried to keep the car door only open slightly so that the cars heater could warm Melovidov, Sergeant Seaman stood to the side. Officer Hamblin identified Sergeant Seaman and himself and said why they were there. He advised Melovidov of his Miranda rights. Their conversation, which was recorded, lasted about 30 minutes, during which time Officer Hamblin pulled up Melovidovs pants, which were halfway down to his thighs. Melovidov stated that he had been involved in the robbery. He was worried that he would be hurt if he gave the name of the other man involved. Officer Hamblin said that they could get the mans name through other means, such as from fingerprints, but that the quickest way was for Melovidov to tell them. Melovidov asked if the charges against him would be dropped or reduced if he cooperated. He said that he was cold and asked for his jacket. He said that as soon as he got his jacket he would tell the officer the name of the other man involved. Sergeant Seaman retrieved a coat to put over Melovidov. Eventually, Melovidov identified the other person involved in the Bonfare Market robbery as well as in a robbery that occurred on March 16, 2006, as defendant.
Miranda v. Arizona (1966) 384 U.S. 436.
Melovidov was taken in the patrol car to the hospital for treatment before being transported to the police department. Sergeant Seaman and Officer Hamblin interviewed Melovidov at the police department around 9:00 a.m. on March 24, 2006. The officers were still in plain clothes. Melovidov was handcuffed. "He was scared about what was happening. And he . . . was trying to do the right thing."
Officer Hamblin testified that he responded to the Bonfare Market around 2:00 a.m., about two hours after the robbery incident. Melovidov, who was about 20 years old, was sitting in the back of a patrol car with his hands handcuffed behind his back. The patrol cars engine and heater were on and its doors and windows were closed. Officer Hamblin was informed that Melovidov was found hiding in a Jacuzzi. Officer Hamblin did not want to take Melovidov out of the car to talk to him, nor did he want to sit in the car with Melovidov, so he kept the car door as closed as he could during their conversation. Sergeant Seaman stood behind and to the side of Officer Hamblin during his conversation with Melovidov.
Melovidovs clothes were dark and wet. He said that he had been bitten by the police dog, that he was in pain, and that he was bleeding, but Officer Hamblin did not notice him moving around uncomfortably. Melovidov stated that he did not want to talk, so the officer told Melovidov that he would read him his rights.
While the officer was advising Melovidov of his Miranda rights, Melovidov said that he did not want to talk. The officer told Melovidov that he did not have a lot of options, and that if he did not talk it would be perceived as not taking responsibility. He said that he was willing to take responsibility for his own actions but he did not want to snitch on anybody else. The ensuing conversation lasted about one-half hour, during which time Melovidov identified the person who committed the robberies with him as defendant.
Before Melovidov gave the other persons name, Officer Hamblin told him that they would do everything they could to keep the person from finding out that it was Melovidov who told them. Officer Hamblin said that there were other ways they could make it appear how Officer Hamblin had learned the name. He said that Melovidov had nothing to gain if they learned the information from the prints on the gun. Officer Hamblin "made it very clear to him that by cooperating with us it would make him look like he was taking responsibility for his actions, and it would make him look more realistic and it would paint him in a more positive light. And it would make him look like — not like a dangerous person."
Melovidov said a few times that he was cold. Officer Hamblin said that they would get him something warm to wear, but they could not do so right away. At one point Melovidov pointed out that his pants were down near his thighs. Officer Hamblin had not noticed it because Melovidovs long shirt covered any exposed skin. At another point, Melovidov asked for a jacket. He said that if the officers let him wear his jacket, he would tell, so the officers got him a jacket. Melovidov asked if the charges would be dropped or reduced if he cooperated. Hamblin did not make any promises to Melovidov at any time to have any charges dropped or reduced. Melovidov said that he did not want to say who committed the robberies with him because the person was from the East Coast and would know it was him who told. The person did not know anybody else in California.
After the conversation, Melovidov was transported to the hospital for treatment, and then to the police station. Sergeant Seaman and Officer Hamblin interviewed Melovidov again at the police station, during which time Melovidov had one hand handcuffed to a table in the interview room. No threats were made to Melovidov by the officers during either of their conversations.
Melovidov testified that he was arrested after midnight after coming out of a Jacuzzi in somebodys backyard. When he reached down to pull up his pants, officers threw him to the ground. He was bitten by a police dog on his buttocks and right arm while the dogs handler hit him with his fists. He was taken to the front lawn and, about ten minutes later, put in a patrol car, handcuffed.
He sat alone in the car for about 30 to 45 minutes. He was cold and scared, and his arm was bleeding. The cars doors were closed but the windows were cracked open. He could not remember if the cars engine or heater was on. When the officers came to speak to him he told them that he did not want to talk to them. They read him his Miranda rights. They did not make any promises to him as to what might happen if he talked about who the other suspect was. But they said that if he told them, it would look better "in the D.A.s eyes."
The officers did not tell him they were going to write the police report in a particular way if he cooperated. They told him that they were going to find out who the other person was anyway, so he might as well talk. They told him that the other person was not going to find out if he gave up the persons name, and he believed them. He thought that if he just told them something, maybe it would help him in the long run. He did not understand the severity of the charges and thought that maybe he could get the charges dismissed. He told the officers, "Ill give you guys a name, just give me my jacket." He understood that to help himself he had to tell the officers the truth.
The officers who spoke to him were in street clothes and neither of them showed him a gun. They did not threaten him or put their hands on him in a threatening manner. He was familiar with the criminal justice system because he had prior arrests. He was arrested in 2004 on a theft related case, and in 2003 on a misdemeanor battery case, but he did not spend any time in jail.
At the hospital, they cleaned his wounds, but he could not remember if they gave him any medication. He then went to the police station, where he again talked to the two officers. Nobody threatened him during that time, either.
The Trial Courts Ruling
After taking the motion under submission, the court ruled as follows.
"The court first would note that [the prosecutor] is correct with regard to the standard that Im to apply, it is the totality of the circumstances. Also correct in outlining those things that I need to take under consideration, the character of the suspect, the details of the interrogation, the length, the location, things like that.
"Counsel, what strikes me about this is that if the argument is that he was cold, he was tired, he was bitten by a dog, and those things should be considered, I consider them but it also seems important to note that this person, these things werent foisted upon him by a couple of officers that were trying to use those circumstances in order to coerce him into saying something he didnt want to say.
"Its late at night because this particular person chose to do an armed robbery at midnight. Hes wet because in his efforts to flee the officers he jumped into a Jacuzzi. Hed been bitten by a dog because hes apparently still resisting. So all those factors and the court does consider them.
"In looking at the officers behavior, it certainly doesnt look like they took advantage of any of those things in order to get a misstatement. In fact, they seemed to be somewhat sensitive to the fact that the person was cold or that he was uncomfortable and actually took steps to [alleviate] those things to some extent.
"Even with all that there, the court does not feel that this is a coerced statement. Im taking the totality of the circumstances. I think given he is a young man, he has some sophistication, thats obvious throughout the interview, he seemed to want to manipulate things and came up with a lot of thought process going on there. And I dont believe the officers made any implied or express threats against him to get this.
"To the extent that they made any promises, they werent that they [sic] would be treated leniently. They did indicate that it would be to his benefit to be honest and forthright, and it can only help him, and that fact is probably true.
"So all and all given the standard that I have to apply Im not satisfied that the statement was involuntary.
"So to the extent that it is a voluntary statement, depending upon how you want to use it, counsel, if you need to use it for impeachment purposes or whatever, the court would allow that to happen."
As the jury found defendant guilty of only three counts, only the evidence as to those counts is set forth here.
Counts 5 and 6 (Kumar and Dass)
Munish Kumar was working as a cashier at the Bonfare Market on Snell Avenue in San Jose on March 23, 2006. Just before midnight, his uncle Durga Dass was sitting with him, visiting, when two young men who were wearing scarves over their faces came into the store. One of the men, who was African-American and about six feet tall, was wearing a hat, sunglasses, and black leather gloves. He jumped over the counter, pulled out a handgun, and pointed it at Kumar. The other man, who was Asian and shorter than the first man, pulled out a shotgun and ordered Dass to lie down on the floor. Dass did so.
The man with Kumar told him to open the cash register, so he did. The man told Kumar to lie down, and he did. The man grabbed cash from the cash register and Kumars wallet from his back pocket and put the cash and wallet in his own pocket. He ordered Kumar to stand up and to open the safe. When Kumar said that he did not have the code to do so, that only the owner did, the man hit him in the mouth with the gun, causing his lip to bleed. The man then took Kumar to the office in the back of the store and ordered him to unlock it. When Kumar said that he did not have the keys, the man kicked the door open. He asked Kumar for the surveillance camera tape, but Kumar said that he did not know where the recording system was. The man looked around the office. As he and Kumar were leaving the office, they heard sirens. The man with Kumar told the other man that the police were coming, and the two men ran out of the store.
When asked at trial if defendant was the man who robbed him, Kumar testified, "Im not sure, but I think its him." "Im not a hundred percent sure."
Numerous officers responded to the report of an armed robbery at the Bonfare Market that night. The suspects reportedly had a shotgun and a handgun. The officers set up a perimeter. One officer located a baseball cap inside a hot tub, two gloves, and a bandanna. Another officer located a loaded shotgun in some bushes. At some point, one of the suspects, Melovidov, was apprehended from a hot tub.
Melovidov testified that he was originally charged as a co-defendant in this case. He pleaded guilty to charges regarding three different armed robberies, on March 6, 2006, March 16, 2006, and March 23, 2006, and is serving his sentence. He was subpoenaed to testify at defendants trial. No promises were made to him or by him regarding his testimony at the time he entered his plea.
Melovidov is Samoan. In March 2006, a friend of his, Kamila Payne, was dating defendant. Melovidov was arrested in the early morning hours of March 24, 2006, in somebodys backyard in the area of Blossom Hill and Snell. He had been in a heated Jacuzzi for an hour or two. He was bitten by a police dog on his buttocks and right arm and the officer punched him in the face and chest while he was being bitten. Officers turned him over, handcuffed him, and had him stand up. They took him to the front yard, told him to get down on his knees, pointed a gun at him, and told him to tell them where his partner was. He responded that he did not know what they were talking about.
At some point, he was placed in the back of a police car. He was sitting on the bite wound on his buttocks and there was blood on his arm. He was cold and wet. The cars engine and heater were off and the windows were cracked open a few inches. About 30 to 45 minutes later, two officers in plain clothes interviewed him for about one-half hour. They read him his Miranda rights and he told them that he did not want to tell them anything. They pressured him to give them the name of the person who committed the robbery with him. He did not want to tell them, because he did not want to be a snitch, but he eventually did. He said that defendant committed the robbery with him.
Melovidov told the officers that he had a loaded shotgun during the robbery and that defendant had a fake handgun. Defendant was the one who demanded money from the clerks, who took the money from the cash register, who hit a clerk in the face, and who went into the office at the back of the store to try to get the surveillance tape. Defendant and Melovidov ran out of the store when they heard police sirens. Melovidov threw the shotgun into some bushes.
Melovidov also told the officers that defendant committed previous robberies with him. However, he lied to the officers because defendant was never with him. He gave the officers a name because they said it would look better in the "D.A.s eyes." He gave them defendants name because he knew that defendant was returning to the East Coast at the end of March and he thought that defendant would not be caught. However, defendant was arrested the day he was supposed to leave.
After Melovidovs police interview, he was taken by patrol car to the hospital. There, his wound was cleaned and he was given Vicodin. He was then sent to the police station, where he was interviewed by the officers again. About two to three weeks before the trial, Melovidov told an investigator who came to see him that he gave the officers the wrong name. He did not tell any law enforcement officers this before then even though he knew that serious charges had been pending against defendant for over a year and a half. He did not want to admit that he had given the officers the wrong name.
Officer Hamblin testified that Melovidov was handcuffed and in the back of a patrol car when he first spoke to him after the robbery for about one-half hour. The cars engine and heater were on, and Officer Hamblin opened the car door just enough to be able to talk to Melovidov. Sergeant Seaman stood on the other side of the door. Melovidov said that he was bitten by a police dog and was in pain, and that he did not want to talk to the officers. Officer Hamblin told defendant that if he did not talk, he would be perceived as not willing to take responsibility for his crime.
At no time during their conversation did Officer Hamblin threaten Melovidov. Officer Hamblin asked Melovidov who committed the robberies with him, and Melovidov was not anxious to give up that information. He said that he was not a snitch. He said that the other person was the boyfriend of a friend of his and was from the East Coast, so that nobody else would be able to name the person as a suspect. Officer Hamblin promised Melovidov that if he cooperated with the officers they would reflect that cooperation in their reports to the district attorney, which would help him by showing that he was taking responsibility for his actions. Officer Hamblin also mentioned that, if Melovidov gave them false information or did not cooperate with them, it would also be reflected. Melovidov said " `Give me my jacket and Ill give you a name. " Melovidov was given his jacket. Melovidov finally told the officers that defendant was the person who committed the robberies with him, and that defendants fingerprints would be on the shotgun that was found. Melovidov said that defendant demanded money from the clerk, hit the clerk with his fist, took money from the cash register, and went to the office in the back of the store to retrieve the surveillance tape, but was unable to retrieve it.
The shotgun retrieved from the bushes was tested for fingerprints, but none were found. Swabs were taken of the shotgun and submitted for DNA analysis, and the analysis concluded that defendant was included as a possible source of the partial DNA profile found. A DNA analysis of one of the retrieved gloves concluded that defendant was a possible contributor to the DNA mixture on the gloves. The mixture included the DNA of at least three individuals and Melovidov and Payne were also included as possible contributors to the mixture.
Count 1 (Messer)
On the evening of March 6, 2006, Kevin Messer was working alone at EB Games in San Jose. Two men came in the store approximately 10 to 15 minutes before the 8:00 p.m. closing time. One man was African-American, about six feet tall, and was wearing a white doo-rag and a black hat on his head. The other man was Latino and shorter, and both men were wearing black clothing. Messer identified defendant at trial as the African-American man. Defendant and the other man played videogames on the demonstration systems while another family was in the store. When the family left, Messer informed the two men that he needed to close the store. They asked if they could have a few minutes to pick out a game and they said that they knew what they wanted.
Messer went to the middle of the store to return the game the family decided they did not want. After he opened a case and had his back to the two men, defendant grabbed him from behind and threw him to the ground. Both men kicked him and defendant punched him in the face below his eye. Defendant told Messer to get up, and then took him over to the store door and told Messer to lock it and to turn off the lights. The other man closed the blinds to the windows. The men took cash from a cash register and defendant took $40 from Messers wallet. Defendant took Messer through the store and had him take out some games and the Xbox 360 demonstration unit while the other man was elsewhere in the store putting things into a bag. Defendant took Messer to a back room and had him put some PlayStations into his bag. Defendant told Messer, " `Good thing you cooperated, I didnt want to shoot you, " but Messer did not see a gun.
After about one-half hour, defendant asked Messer if he had a car there, and Messer told him no. Defendant told the other man to bring their car around to the back. They had Messer unlock the back door and the man left. Defendant told Messer that he could clean up his face. He then instructed Messer to stay in the bathroom with the door closed, and wait until he heard the back door closing before coming out. Messer stayed in the bathroom with the door closed for a few minutes, just until a few seconds after he heard the back door close. When he looked out, the men were gone, so he called the police. The police interviewed Messer and dusted the demonstration units for fingerprints. Messer was transported to the hospital by ambulance. As a result of the incident, Messer has a chipped tooth, a scar from a cut on his face, and a "floater" in his right eye (a black spot that he can always see).
As part of his investigation of the incident, Officer Hamblin showed two photographic lineups to Messer on April 5, 2006. One lineup included a photo of Melovidov, the other included a photo of defendant. Messer picked out Melovidovs and defendants photos from the lineups. However, Messer said that it was difficult for him to be certain because the African-American robber was wearing a white doo-rag and a black cap over his head.
Verdicts and Sentencing
After the close of evidence and outside the presence of the jury, the court granted the prosecutors motion to amend count six of the information to allege the false imprisonment of Dass in violation of section 236 and 237, subdivision (a), rather than robbery, to conform to proof at trial.
On October 10, 2007, the jury found defendant guilty of two counts of second degree robbery as charged in counts 1 and 5, and false imprisonment as charged in count 6. The jury further found true the allegation as to count 1 that defendant personally inflicted great bodily injury on Messer, a person not an accomplice to the offense, and the allegation as to counts 5 and 6 that defendant knew that Melovidov, a principal in the commission of the offenses, was personally armed with a firearm. The jury found defendant not guilty of the second degree robberies charged in counts 3 and 4, and hung as to the attempted robbery charged in count 2.
On January 25, 2008, the parties stipulated to amend the weapon enhancement to count 5 to be a violation of section 12022, subdivision (a) rather than subdivision (d). In exchange for the prosecutors motion to strike the weapon enhancement to count 6 and promise to not retry the charges on count 2, defendant agreed to an eight-year sentence and to waive his right to appeal any sentencing issues. The court sentenced defendant to eight years in state prison as agreed to by the parties. The court also ordered defendant to pay restitution to Messer, Kumar, and the owner of the Bonfare Market.
DISCUSSION
Defendant contends that Melovidovs statement that defendant committed the offenses charged in counts 3 through 6 should not have been admitted as evidence against defendant because "[t]he statement was involuntary, having been induced by the police by implied promises of leniency." "Melovidovs statement that [defendant] was the person with whom he committed the robberies was not the product of his rational intellect and free will. (See Mincey v. Arizona (1978) 437 U.S. 385, 398.) Rather, the statement was caused by the implied promise of leniency that the statement would make him `look better in the district attorneys eyes."
The Attorney General contends that "the evidence [does] not support the claim that the officers improperly coerced a statement from Melovidov, that Melovidov expected to receive anything from the officers, or that his statement was rendered so unreliable that the jury should not have been allowed to hear it." "Even if Melovidovs statements were the product of unlawful coercion, that conclusion would not result in a different result because, in light of the entire record, [defendant] was not deprived of a fair trial."
Initially, we observe that "defendant lacks standing to raise the claim that in conducting their interrogation, police officers violated [Melovidovs] privilege against self-incrimination. A defendant lacks standing to complain of the violation of a third partys Fifth Amendment privilege against self-incrimination. [Citations.] [¶] Defendant does have standing, however, to assert that his own due process right to a fair trial was violated as a consequence of the asserted violation of [Melovidovs] Fifth Amendment rights. [Citations.] As we have recognized, the ` "admission at trial of improperly obtained statements [of a third party] which results in a fundamentally unfair trial violates a defendants Fifth Amendment right to a fair trial." [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 965 (Jenkins); see also People v. Badgett (1995) 10 Cal.4th 330, 343-344 (Badgett); People v. Douglas (1990) 50 Cal.3d 468, 499-501.)
"The violation of a third partys privilege against self-incrimination may deprive a defendant of his or her due process rights if such action adversely affects the reliability of testimony offered against defendant at trial." (Jenkins, supra, 22 Cal.4th at p. 966.) "[A] defendant may not prevail simply by alleging that the challenged evidence was the fruit of an assertedly involuntary statement of a third person." (Ibid.) "[W]hen the defendants claim is based upon the involuntariness of a third partys statement, the exclusionary rule applicable to a claimed violation of the privilege against self-incrimination does not apply. [Citation.] Rather, the defendant may prevail only by demonstrating fundamental unfairness at trial, normally by establishing that evidence to be produced at trial was made unreliable by coercion. [Citation.]" (Ibid.; see also Badgett, supra, 10 Cal.4th at pp. 346-348.)
"The purpose of exclusion of evidence pursuant to a due process claim . . . is adequately served by focusing on the evidence to be presented at trial, and asking whether that evidence is made unreliable by ongoing coercion, rather than assuming that pressures that may have been brought to bear at an earlier point ordinarily will taint the witnesss testimony." (Badgett, supra, 10 Cal.4th at pp. 347-348; Jenkins, supra, 22 Cal.4th at p. 967.)
"We also point out that there is a significant difference in the burden of proof applicable to a claim under the Fifth Amendment and defendant[s] claim that the testimony of a third party is subject to exclusion as a matter of due process. The burden is on the People to demonstrate the voluntariness of a defendants admissions or confessions by a preponderance of the evidence. [Citations.] Similarly, it falls to the People to demonstrate, in the case of successive confessions or statements, that the `taint of a first, involuntary statement has been attenuated. [Citations.] By contrast, when a defendant makes a motion to exclude coerced testimony of a third party on due process grounds, the burden of proving improper coercion is upon the defendant. [Citation.] Even assuming an out-of-court statement of a third party was the product of improper pressures, it cannot be the rule that the burden is on the People to demonstrate that the taint of the statement was purged by the time the witness testified. Rather, a defendant must demonstrate that trial testimony following the coercion of a witness was actually tainted thereby. [¶] Testimony of third parties that is offered at trial should not be subject to exclusion unless the defendant demonstrates that improper coercion has impaired the reliability of the testimony. We believe . . . that a witnesss trial testimony is not necessarily unreliable simply because the witness was subject to improper pressures in making an earlier, out-of-court statement. [Citation.] Thus, it is not enough for a defendant who seeks to exclude trial testimony of a third party to allege that coercion was applied against the third party, producing an involuntary statement before trial. In order to state a claim of violation of his own due process rights, a defendant must also allege that the pretrial coercion was such that it would actually affect the reliability of the evidence to be presented at trial." (Badgett, supra, 10 Cal.4th at p. 348, fn. omitted.)
On appeal, we offer no deference to the trial courts decision to admit the testimony, and examine "the entire record, and most particularly the record of the witnesss trial testimony, to determine whether, in our view, `admission of [the third partys] testimony deprived defendant of a fair trial. " (Badgett, supra, 10 Cal.4th at p. 350, citing People v. Douglas, supra, 50 Cal.3d at p. 503.)
"We have never held, nor has any authority been offered in support of the proposition, that an offer of leniency in return for cooperation with the police renders a third party statement involuntary or eventual trial testimony coerced." (Badgett, supra, 10 Cal.4th at p. 354.) "[T]he case law fails to support defendants premise that a third party witnesss statements are rendered inadmissible against a defendant if induced by improper offers of leniency. [Citation.]" (People v. Ervin (2000) 22 Cal.4th 48, 83.) " `There is nothing improper in confronting a suspect with the predicament he is in, or with an offer to refrain from prosecuting the suspect if he will cooperate with the police investigation. [Citation.]" (Badgett, supra, 10 Cal.4th at p. 355; compare People v. Hogan (1982) 31 Cal.3d 815, disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836 [admission of the defendants pretrial statement to police improper due to promise of leniency]; People v. Cahill (1994) 22 Cal.App.4th 296 [admission of the defendants pretrial statement to police improper due to promise of lenient treatment].)
However, a defendant is denied a fair trial " ` "if the prosecutions case depends substantially on accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion." [Citation.] Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in defendants conviction [citation], the accomplices testimony is "tainted beyond redemption" [citation] and its admission denies defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear than an agreement requiring only that the witness testify fully and truthfully is valid. [Citation.]" (Badgett, supra, 10 Cal.4th at p. 358.)
After reviewing the record as a whole, we find that the admission of testimony regarding Melovidovs pretrial statement to police did not deny defendant a fair trial. The prosecution did substantially rely on Melovidovs testimony regarding counts 5 and 6, but there is no evidence in the record that Melovidov was under a strong compulsion to testify in a particular manner. Rather, the record supports a contrary finding. Melovidov did not testify under a grant of immunity, he had pleaded guilty to charges related to all counts alleged against defendant, and he was already serving his sentence at the time he testified. No promises were made by the prosecutor to him, or by him to the prosecutor, at the time he entered his guilty pleas. He testified at trial that, although he told the police after his apprehension that defendant was the person who committed two robberies with him, he lied to the police because they made him believe that by giving them a name it would look better for him in the eyes of the district attorney. Melovidov gave the police defendants name because he thought that defendant would not get caught. After defendant was caught, Melovidov did not tell the police that defendant was not the second robber because Melovidov did not want to admit that he had lied, even though he was aware that his statement led to charges being filed against defendant. Thus, Melovidovs trial testimony contradicted his pretrial statement to the police. Melovidov also testified at trial to remembering certain details, such as not having the car heater on during the interview, that he testified during the pretrial hearing he did not remember.
In order to carry his burden, it was not enough for defendant to allege that coercion was applied to Melovidov, producing an involuntary statement before trial. As we stated earlier, "In order to state a violation of his own due process rights, a defendant must also allege that the pretrial coercion was such that it would actually affect the reliability of the evidence to be presented at trial." (Badgett, supra, 10 Cal.4th at p. 348.) Given the state of the record, we reject defendants claim that Melovidovs pretrial statement and testimony should have been excluded as coerced. Melovidovs trial testimony was not necessarily unreliable simply because he was subject to pressures in making his pretrial statement. (Ibid.) Defendant has not carried his burden of showing that he was denied a fair trial due to admission of Melovidovs pretrial statements and testimony.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
MCADAMS, J.
DUFFY, J.