Opinion
E077030
07-13-2022
THE PEOPLE, Plaintiff and Respondent, v. KURTIS BAEK KNIGGE, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Melissa Mandel, Acting Senior Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF1403336. Kelly L. Hansen, Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Melissa Mandel, Acting Senior Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Kurtis Knigge shot the victim Conrado Pizzaro at a Shell Station in Palm Desert after Conrado verbally confronted him. Conrado died from a single gunshot wound to the head a few days after the shooting. Defendant was eventually captured several days later, and ammunition for the gun that was used in the shooting were found in the stolen vehicle he had been driving, along with other items of incriminating evidence. Other parts of the murder weapon were found in a second stolen vehicle in which defendant's prints were found.
During a custodial interview, defendant confessed to the shooting but claimed Conrado had threatened to kill defendant and his passenger. Defendant was charged with murder (Pen. Code, § 187, subd. (a), count 1) and shooting at an occupied vehicle (§ 246, count 2), with enhancement allegations relating to discharging a firearm causing death (§ 12022.53, subd. (d)). A jury convicted defendant of second degree murder as a lesser included offense, as well as count 2, along with true findings as to both firearm enhancements. He was sentenced to an aggregate term of 40 years to life and appealed.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues that reversal is required because (1) the court gave an erroneous felony murder instruction respecting first degree murder as to count 1, and (2) the defendant's due process rights were violated by the prosecutor's refusal to grant immunity to a potentially exculpatory witness. We affirm.
Background
a. The Shooting at the Shell Station.
On December 3, 2014, Conrado went to a Shell Station in Palm Desert. He entered the convenience store at the station, purchased a container of Mike's Hard Lemonade, and left. After Conrado exited the store, he got back into his car and started to drive away. Then a white sport utility vehicle (SUV) entered the station. At that point, the car that had just left returned and stopped parallel to the white SUV. The store clerk then heard angry voices raised in argument and heard a gunshot. When he looked outside, he saw two vehicles in front of him, on the far side of the gas pumps. As it was near closing time, the clerk turned his attention back to his duties until he heard a gunshot and saw arms moving from inside the white SUV.
When he looked up, he saw one of the two cars, the SUV, leave the station in haste. The clerk saw the other car, which contained the person who had entered the store a few minutes before, start moving forward slowly until it hit the wall that separated the Shell station from the nearby business. The store clerk called 911. Sheriff's deputies arrived to find Conrado slumped over the center console of his silver Lexus with a bullet wound to his head. The victim was nonresponsive but still breathing, though with great difficulty. There were no weapons or firearms in the vehicle.
After being transported to the hospital, medical personnel informed one of the detectives that the victim was brain dead. An autopsy attributed the victim's death to a single gunshot wound to the head. The projectile was removed and turned over to the investigators.
The investigation then shifted and was handed off to the Central Homicide Unit (CHU).
b. The Investigation, Identification, and Arrest of Defendant.
The CHU began by examining the Lexus, which the victim had been driving, and noted there were no weapons, firearms, or casings in or near the vehicle. The front end of the vehicle had damage. The investigator who examined the vehicle later attended the autopsy and collected the projectile found in the victim's brain.
The lead investigator also examined the scene, noted the presence of surveillance cameras and called a forensic examiner to download the video from the station's receiver. He also watched the video which showed the following: The victim arrived at the station, exited his Lexus vehicle and entered the store. A few minutes later, he made a purchase, and exited the store. The victim's vehicle is seen driving away, around the south side of the station; at that point, a white Nissan Murano SUV entered the station after coming through the parking lot of a supermarket that abuts the Shell station, passing the victim's vehicle. After the white SUV passed him, the victim backed up and pulled alongside the SUV, in such a manner that both were facing in the same direction. It appeared that the victim initiated the argument. Then the video showed the victim's vehicle start to drive off, while the white Nissan Murano SUV pulled in front of the Lexus, cutting it off, then drove around the pump island and headed out of the station the same way he came in.
After seeing the surveillance video, the lead investigator issued a bulletin to be on the lookout for the white Nissan Murano SUV. The following day, the investigator received information regarding the theft of a Nissan Murano SUV from Palm Desert. This led deputies to the residence of the registered owner of the Nissan Murano SUV. The owners provided the license number for the vehicle and gave the officers access to the garage, where defendant's fingerprints were found.
Thereafter, the Indio police department located the Nissan Murano SUV. On December 5, 2014, the vehicle was impounded for forensic processing. Defendant's fingerprints were found on the left front door handle of the vehicle and under the door handle. Other prints were found on the right front door, and right rear door of the vehicle and under the handle of the door. Swabs taken from the steering wheel and cigarette butts found in the SUV were tested for DNA, which matched the defendant.
DNA from two other individuals was also found on the steering wheel.
When the vehicle was processed, investigators found two .38 caliber cartridges in the driver's door pocket of the Nissan Murano. Another cartridge was found in the cupholder in the center console and cigarette butts were collected from the ash tray. Other items included a cigar wrapper, part of the cigar, another cigarette butt, a lighter, and a cigarette package. The cigarette package had defendant's fingerprints on it. The steering wheel was swabbed for DNA, some of which matched that of defendant. The DNA from the cigarette butts also matched that of defendant.
License plates from New Hampshire and Oregon were also found in the cargo area of the Nissan Murano; the Oregon plates were assigned to the Murano. Investigators also found vehicle registration for a 1998 Toyota vehicle that was registered to Vincent S.
Additionally, various weapons, ammunition, and parts of weapons were found in the back seat of the vehicle and in the cargo area, including the lower receiver of some type of rifle or shotgun, a Browning shotgun, shotgun shells, and a bag containing additional gun pieces.
Meanwhile, a hit-run incident was reported in which the suspected driver had fled on foot. The vehicle involved in the hit-run was described as a red minivan, and the driver was described as five feet 8 inches, or five feet 9 inches, and Asian. The victim of the hit run followed the red minivan until the suspect driver left on foot, throwing his clothing off. Sheriff's deputies found a red Toyota Minivan that had run into the curb, and two of the wheels had become stuck in the dirt. After running the license plates, deputies learned the vehicle, a 1998 Toyota Sienna, had been reported as stolen from Lisa C. and Vincent S.
Outside the vehicle, deputies saw footprints leading from the drivers' side of the vehicle heading due north into the open desert. The area around the vehicle was searched and deputies found items of clothing, a key to a Bentley type vehicle, and a gold chain. The clothing appeared to have been discarded in haste approximately 200-250 yards north of the vehicle's location. The defendant was eventually apprehended with the assistance of a canine unit after a 25 mile pursuit. He was then transported to the sheriff's station.
When the Toyota Sienna was processed, it was found to contain a gun cleaning kit in the vehicle and a dissembled revolver in the glove box, along with a ceramic bowl containing other gun parts. Among the 18 gun parts found were two handgrips to the revolver and a cylinder with five chambers. The revolver parts found in the Toyota Sienna were reassembled with spare parts kept in the laboratory, the reassembled gun was test fired. There was a ballistics match between the bullet fired from the reassembled revolver and the .38 caliber projectile removed from the victim during the autopsy.
Additionally, on the drivers' side floorboard, deputies found store receipts printed on December 6, 2014, bearing the name of Linda Knigge along with a time stamp. One of the master investigators went to the store named on the receipts and reviewed screen shots taken from surveillance cameras showing the 1998 Toyota minivan at fuel pumps in front of the store. The video also showed the driver of the van exiting the vehicle in a blue shirt, while another camera still showed the defendant entering the store wearing a blue shirt. The investigator had come into contact with defendant face-to-face, allowing him to make an identification of the person in the surveillance photographs.
c. Defendant's Interview and Trial.
At the sheriff's station, defendant was admonished of his Miranda rights, and interviewed in connection with the hit-run incident involving the stolen Toyota Sienna, after which the investigation was handed over to the homicide investigators. Defendant was then interviewed by the lead investigator on the homicide, after having received reports that defendant's fingerprints had been identified, and after seeing the video of the defendant exiting the Sienna at the store and was aware a gun had been found in the Sienna.
Referring to Miranda v. Arizona (1966) 384 U.S. 436.
Defendant initially denied any information about the stolen vehicles, denied that the fingerprints were his, and denied ever riding in or being in possession of the stolen vehicles.
After being informed he was to be charged with murder, the investigators left the room, pausing the interview to begin the paperwork. Ninety minutes later, defendant asked to speak to the lead investigator again. During this portion of the interview, defendant indicated he had just pulled up to the gas station and another car carrying the victim pulled up alongside him. The victim started yelling at defendant and making threatening statements, such as, "What's up mother fucker? What's up, dude? You want to get shot?" Defendant did not know why he was angry but figured he must have pulled in too quickly to the station. Defendant tried to ignore him, but the victim threatened to shoot him and his passenger, and defendant feared for their lives.
Defendant informed the lead investigator that an officer who had escorted him to the bathroom had suggested the charges would be different if defendant "worked with" them. Defendant was apparently unaware that the officer had audio recorded the conversation while escorting defendant to the bathroom; when the lead investigator confronted defendant with this statement, defendant explained he just inferred the charges would be different if he cooperated.
Defendant pulled out his gun and pointed it at the victim to frighten him because the victim was not leaving. He did not believe the gun would shoot because it had failed to shoot on a prior occasion. The victim seemed to reach under his seat so defendant fired once and left. The passenger did not come forward or agree to an interview, and as recently as several days before commencement of trial, the passenger denied being present in the vehicle. However, the investigators did interview a woman to whom the passenger had made a statement; she related the passenger's statement that the victim initiated the confrontation, and that defendant opened the car window and fired his gun without hesitation.
Defendant was charged with one count of murder (§ 187, subd. (a), count 1) and one count of shooting at an occupied vehicle (§ 246, count 2). In connection with each count, it was further alleged that defendant had discharged a firearm causing death (§ 12022.53, subd. (d)). Defendant was tried by a jury that convicted him of second degree murder as a lesser included offense within the charge in count 1, as well as count 2, with true findings as to both gun discharge enhancements.
Prior to his sentencing, defendant made a motion for a new trial on the ground the prosecution did not give adequate notice of its intention to proceed on a theory of first degree felony murder in violation of his due process rights, and that the felony murder instruction was improper because section 246 is not one of the felonies enumerated in section 189. At the sentencing hearing, the trial court denied the motion for new trial because the instruction could not have prejudiced defendant where the jury acquitted him of first degree murder.
The defendant was sentenced to an aggregate term of 40 years to life, using 15 years to life as the base term for count 1, plus 25 years to life for the firearm discharge enhancement. The court stayed the terms for count 2 and its accompanying enhancement. Defendant timely appealed.
Discussion
On appeal, defendant raises two issues: (1) whether the trial court committed reversible error in instructing the jury on principles of first degree felony murder, and (2) whether his constitutional rights to a fair trial were violated by the prosecution's refusal to grant immunity to a potentially exculpatory defense witness.
1. The First Degree Felony Murder Instruction Was Harmless Error.
a. Background
Defendant argues that his conviction must be reversed because the trial court erroneously instructed the jury on first degree felony murder principles, specifying the crime of shooting at an inhabited vehicle (§ 246) as the predicate felony, where that offense is not enumerated in section 189 as a predicate for first degree felony murder, and where such a theory violates the merger doctrine under People v. Ireland (1969) 70 Cal.2d 522 (Ireland) and People v. Chun (2009) 45 Cal.4th 1172 (Chun).
After the People rested their case in chief, the parties began discussing instructions and the People requested an instruction on alternate theories of first degree felony murder. (CALCRIM Nos. 548, 540-A.) The defendant objected because the prosecution was bootstrapping and that trying to shoot the victim could not be the predicate felony for a felony murder. The People clarified that count 2 was the felony on which the felony murder theory would be based, and the court overruled defendant's objection on the ground he could not be sentenced for both counts anyway.
In a subsequent discussion, defendant again objected because the People had not given adequate notice it would rely on the alternate murder theory, in violation of due process principles. The prosecution argued the defendant was charged in count 2 with a violation of section 246 so he was always on notice of the felony, and the court agreed, again overruling the defense objection.
The court instructed the jury that defendant was charged in count 1 under an alternate theory and explained the principles of first degree felony murder in addition to the instructions on premeditated murder. Defendant was convicted of second degree murder and made a motion for new trial. In his motion, defendant argued the instructions were erroneous because of lack of notice the prosecution would rely on a felony murder theory, and that the felony of shooting at an occupied vehicle was not one of the enumerated felonies in section 189, citing Chun, supra, 45 Cal.4th 1172. The motion was denied.
On appeal, defendant asserts that the Chun court's discussion of situations in which a second degree murder conviction could be prejudiced by a felony murder instruction apply to his conviction. Specifically, he notes that the Supreme Court recognized there might be situations in which the instructional error may be deemed prejudicial, such as when it is combined with another error. However, it bears noting that in Chun, the jury was instructed on principles of second degree felony murder, which was not the situation here.
As we will explain, none of the circumstances in which an improper felony murder instruction could result in prejudice to a defendant convicted of second degree murder are present here because the jury was properly instructed on that lesser included offense. Moreover, even if the jury had been instructed on second degree felony murder, defendant has not properly presented us with second assignment of error nor established that cumulative error occurred.
b. Discussion
We review claims of instructional error de novo, considering the "instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also, People v. Posey (2004) 32 Cal.4th 193, 218.) "Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (Chun, supra, 45 Cal.4th at p. 1201.) "When deciding a claim of instructional error, the reviewing court looks not only at the challenged instruction, but at the instructions as a whole in the context of the entire trial record." (People v. Mejia (2012) 211 Cal.App.4th 586, 617, citing People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)
Both sides agree that the offense of shooting at an occupied vehicle (§ 246) cannot form the basis for a first degree felony murder conviction because the offense is not enumerated under section 189. "All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." (§ 189, subd. (a).)
The offense of shooting at an occupied vehicle in violation of section 246 is not enumerated, and, therefore, cannot form the basis for a first degree felony murder conviction. "'"If the felony is listed in section 189, the murder is of the first degree; if not, the murder is of the second degree."'" (People v. Powell (2018) 5 Cal.5th 921, 942, citing People v. Bryant (2013) 56 Cal.4th 959, 965 (Bryant).) It was error to instruct the jury on principles of first degree felony murder with a non-enumerated felony as the predicate. However, defendant was acquitted of first degree murder so any error in the instructions was necessarily harmless beyond a reasonable doubt.
That the prosecutor would make a request for first degree felony murder instructions grounded on a felony that is not enumerated in section 189 is inexplicable. This error should not have occurred. A prosecutor has a duty "to charge only those offenses she believes she can prove beyond a reasonable doubt. (People v. Lopez (2020) 9 Cal.5th 254, 276.) The fact the error is deemed to be harmless in this case should not be viewed as approval.
Regarding the theory of second degree murder presented to the jury, we begin by noting that prior to the enactment of Senate Bill No. 1437 and the amendments to section 189, an inherently dangerous felony other than one of the felonies enumerated in section 189, subdivision (a) could form the basis for a conviction of second degree murder: "'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.'" (People v. Williams (1965) 63 Cal.2d 452, 457, and cases there cited; see also People v. Bryant, supra, 56 Cal.4th at p. 965.) But there were limitations to the applicability of this theory, so that, as with first degree felony murder, second degree felony murder is restricted by the merger doctrine of Ireland, supra, 70 Cal.2d 522. (Bryant, supra, 56 Cal.4th at p. 965; see also, Chun, supra, at 45 Cal.4th at p. 1189; People v. Baker (1999) 74 Cal.App.4th 243, 249-250.)
Thus, under the Ireland doctrine, when the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, the felony merges with the homicide and cannot be the basis of a felony-murder instruction. (Chun, supra, 45 Cal.4th at p. 1200.) "An 'assaultive' felony is one that involves a threat of immediate violent injury." (Ibid., citing People v. Chance (2008) 44 Cal.4th 1164, 1167-1168.)
We agree with the parties and the trial court that the felony murder instructions applicable to the first degree murder charge were improper in this case. But, as we have already noted, any error was harmless. The jury was not instructed on a theory of second degree felony murder, as was the situation in Chun, supra. Instead, the jury was correctly instructed on the elements of second degree murder as a lesser offense included in the greater offense of first degree premeditated murder, a malice based theory. Under these circumstances, there is no means by which the jury could have misapplied the errant instruction as to first degree felony murder to the lesser included offense in reaching its verdict. For this reason, we do not need to explore the impact of Senate Bill No. 1437 on the second degree felony murder doctrine.
We do note that at least two recent published cases have discussed the abrogation of second degree felony murder. (See, People v. DeHuff (2021) 63 Cal.App.5th 428, 442; In re White (2019) 34 Cal.App.5th 933, 937, fn. 2.) This case was tried after the adoption of the amended version of section 189, so we assume the trial court's instructions on the theory of second degree murder as a lesser included offense was in recognition of this legislative change.
Thus, defendant's efforts to apply the reasoning of Chun must fail because the present case is distinguishable from Chun significant ways: First, the jury in this case was not instructed on the theory of second degree felony murder so there was no risk that it convicted the defendant of second degree murder on an invalid legal theory. For this reason, it is unnecessary to determine if there was cumulative error that might affect the determination of prejudice.
Second, there was no evidentiary error established, from which a cumulative error argument could be made as urged by defendant. In Chun, the intermediate Court of Appeal had been presented with and had actually found evidentiary error along with the instructional error. But it had concluded both were harmless without considering the cumulative effect of the two errors requiring the remand to the reviewing court to consider the question of cumulative error. (Chun, supra, 45 Cal.4th at p. 1205.)
Defendant attempts to draw an analogy in this case, arguing that prejudicial evidence was also admitted in the trial court here, and that we should also reverse based on the cumulative errors. However, although defendant forcefully argues the evidence was prejudicial, he has failed to establish legal error in the admission of the evidence the shotguns found in the SUV defendant was driving.
A trial court has broad latitude in determining the relevance of evidence, and we review such determinations for abuse of discretion. (People v. Nguyen (2015) 61 Cal.4th 1015, 1073, citing People v. Scott (2011) 52 Cal.4th 452, 490.) Here, the evidence of the shotguns and shotgun shells was not unduly prejudicial. We are aware of cases holding that it is generally error to admit evidence that the defendant possessed a weapon that could not have been the one used in the charged crime. (People v. Sanchez (2019) 7 Cal.5th 14, 55, citing People v. Barnwell (2007) 41 Cal.4th 1038, 1056; People v. Riser (1956) 47 Cal.2d 566, 577.) The rationale for precluding the admission of evidence that a defendant has other weapons in his possession "'sometime after the crime'" where the prosecution knows it was not the specific weapon used in a homicide, is the risk that such evidence proves only that the defendant is in the habit of possessing a deadly weapon and is not probative on the issue of whether he had possessed the particular weapon involved. (People v. Gunder (2007) 151 Cal.App.4th 412, 416, citing People v. Cox (2003) 30 Cal.4th 916, 956.)
However, the discovery of the weapons in various stages of assemblage in the Nissan SUV after the murder was relevant where the shotgun was found in close proximity to the registration for the Toyota Sienna, which was also located in the Nissan Murano, and to establish his identity as a suspect, prior to his arrest and confession. Further, given defendant's confession, and his statements that he was acting in selfdefense, his possession of various assembled and dissembled firearms, including the shotguns, and eyewitness testimony that he was in the Toyota Sienna immediately before the discovery of parts of the murder weapon, was more probative than prejudicial on the credibility of his out of court self-serving statements.
Defendant places emphasis on cases involving evidence of a defendant's prior possession of firearms as a demonstration of the "pernicious nature of such evidence," citing People v. Hendrix (2013) 214 Cal.App.4th 216, 238. However, the authorities he relies upon are situations in which the evidence was proffered as evidence of prior uncharged crimes, within the meaning of Evidence Code section 1101, subdivision (b). (See People v. Hendrix, supra, 214 Cal.App.4th at p. 238.) In Hendrix, the court cautioned that the natural and inevitable tendency is to give excessive weight to the prior conduct and either allow it to bear too strongly on the present charge, or to take the proof of it as justifying a conviction irrespective of guilt of the present charge. (Ibid., citing People v. Guerrero (1976) 16 Cal.3d 719, 724; People v. Schader (1969) 71 Cal.2d 761, 773, fn. 6.) The firearms evidence admitted in the current case was not evidence of prior conduct by the defendant. Instead, the weapons of which defendant complains were found in the Nissan SUV defendant was known to have driven. The fact there was an interval of time between defendant's use of the vehicle and the location of the Nissan SUV by law enforcement goes to weight, not admissibility, because the firearms were not offered as other crimes evidence.
We conclude that the probative value of the evidence was not outweighed by prejudice where defendant was acquitted of first degree murder. Contrary to defendant's assertion, it is not a foregone conclusion that the jury would have credited his pretrial statement about fearing for the lives of himself and his passenger where the taped interview is laced with his false denials that he was in or driving either of the vehicles in which weapons and weapon parts were located.
Without establishing a second reversible error, there is no basis for a finding of prejudice flowing from the improper felony-murder instruction under the reasoning of Chun, even if that theory had been presented to the jury. Because the improper felony murder instruction was restricted to the jury's consideration of defendant's guilt on the first degree murder charge, and because he was acquitted on that charge, the error was harmless.
2. There Was No Prejudicial Misconduct By the Prosecutor in Refusing to Grant Immunity to the Potential Defense Witness.
In his pretrial statements to investigators, defendant asserted he fired a gun in selfdefense and in defense of his passenger. During trial, while cross-examining the lead investigator, defendant elicited that the officer had interviewed a woman who had spoken with the alleged passenger. In chambers, defendant sought to elicit the woman's statements, which corroborated defendant's assertion that the victim had made threats, although she also relayed that the passenger told her defendant rolled down the window, got his gun and shot Conrado, claiming defendant "was tripping out and didn't think twice before shooting [the victim]." The trial court indicated the statement from the woman to the investigator was triple-hearsay, and that the passenger would have to come in to testify.
The passenger did show up in court but, based on the prosecutor's representations that the witness had never come forward to give a statement to police and, instead, had recently denied being in the car when the shooting occurred, the witness invoked his Fifth Amendment rights. On appeal, defendant claims his trial counsel's failure to object does not forfeit the error because any objection would have been futile, given that the power to grant immunity resides solely with the executive branch. (People v. Masters (2016) 62 Cal.4th 1019, 1051.)
"'It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal.'" (People v. Johnsen (2021) 10 Cal.5th 1116, 1164, citing People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) A defendant forfeits a claim that the court or the prosecutor should have granted immunity to a witness by failing to raise that claim in the trial court. (People v. Williams (2008) 43 Cal.4th 584, 625.)
At the time of the in chambers conference to discuss whether the passenger would testify, the prosecutor explained that the People had attempted to corroborate the female witness's statement by interviewing the passenger, but the passenger never came forward and, when he was finally contacted on October 26, 2021, the witness denied being in the car at the time of the shooting. The prosecution stated it was not offering immunity because the witness either lied to the police or was planning to lie on the stand. A contract defense attorney was summoned to interview the witness, after which the witness decided to invoke his right to not testify.
Defendant's objection may have been futile. As defendant himself acknowledges, the power to confer immunity for testimony is vested solely in the prosecution. (People v. Masters, supra, 62 Cal.4th at pp. 1050-1051.) Moreover, in Masters, the Supreme Court "characterized as 'doubtful' the 'proposition that the trial court has inherent authority to grant immunity' [citation]" because "'the power to confer immunity is granted by statute to the executive.' [Citations.]" (Ibid.) In Masters, supra, at page 1051, the Supreme Court acknowledged federal decisions (ref. Government of Virgin Islands v. Smith (3d Cir.1980) 615 F.2d 964, 972 (Smith)) in which judicially conferred use immunity might be constitutionally necessary. (See People v. Stewart (2004) 33 Cal.4th 425, 468-469; People v. Hunter (1989) 49 Cal.3d 957, 974.)
Smith held that a trial court has the inherent authority to grant immunity to overcome prosecutorial misconduct where the failure to grant immunity would otherwise prevent the defendant "from presenting exculpatory evidence which is crucial to [the defense's] case." (Smith, supra, 615 F.2d at p. 969.) But the remedy in federal court is dependent upon the defendant showing witness immunity was: "'(1) properly sought in the district court; (2) the defense witness [is] available to testify; (3) the proffered testimony [is] clearly exculpatory; (4) the testimony [is] essential; and (5) there [are] no strong governmental interests which countervail against a grant of immunity.'" (United States v. Quinn (3d Cir.2013) 728 F.3d 243, 251, quoting Smith, supra, 615 F.2d at p. 972; see also, People v. Masters, supra, 62 Cal.4th at pp. 1051-1052.) If the test is satisfied, the remedy is for the court to set aside the conviction and put to the prosecution the choice of granting immunity or facing dismissal of the charges.
In California, the analysis turns on whether prosecutorial misconduct has been committed, and whether "it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury." (People v. Masters, supra, 62 Cal.4th at p. 1052 citing People v. Panah (2005) 35 Cal.4th 395, 462.)
Here, even if defendant could establish the testimony would have been exculpatory and clearly essential, he has not established deceptive or reprehensible methods by the prosecution to persuade the trial court or jury. While defendant characterized the information about the existence of an eyewitness who could corroborate his statement of the need for self-defense as critical and exculpatory, the witness was not cooperative, going so far as to deny being present at the time of the shooting. Further, the five part test has not been met where defendant has not shown the evidence was "clearly exculpatory," in light of the reference to defendant's "not thinking twice before shooting."
Thus, even if we were to reach the merits of defendant's assertion, we would reject the contention. It is true that a defendant's Sixth Amendment constitutional rights to compel the attendance of witnesses, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant's right to present witnesses. (People v. Woods (2004) 120 Cal.App.4th 929, 936, citing People v. Lucas (1995) 12 Cal.4th 415, 456.) However, defendant has neither proven prosecutorial misconduct nor that the refusal to grant immunity interfered with defendant's right to present witnesses for purposes of establishing a violation of his right to a fair trial or the right to present witnesses.
Disposition
The judgment is affirmed.
We concur: McKINSTER J. RAPHAEL J.
RAPHAEL, J., Concurring.
I join the opinion and write to offer the following observations on the unsettling instructional error in this case.
I
Defendant Knigge shot and killed the victim at a gas station while each was in a separate vehicle. He was charged with discharging a firearm at an occupied motor vehicle in violation of Penal Code section 246 and first degree murder in violation of Penal Code section 187, subdivision (a) (undesignated sections are to the Penal Code). Knigge admitted being the shooter, and at trial he claimed to have acted in self-defense.
The People asked for and received a jury instruction stating that Knigge was prosecuted for murder under two theories, malice and felony murder. The standard, correct instruction on the malice theory required that Knigge acted willfully, deliberately, and with premeditation in intentionally killing the victim.
As to the felony-murder theory, the court instructed the jury that Knigge was guilty of first degree murder if, while committing the felony of shooting at an occupied motor vehicle, he caused the death of another person, "even if the killing was unintentional, accidental, or negligent." The quoted language is proper for felony murder, a theory that allows a person to be guilty of murder without intending a death.
The felony-murder instruction, however, was wholly improper in this case.
First, since the enactment of the original Penal Code in 1872, first degree felony murder has been limited to deaths occurring during a short list of felonies enumerated in Penal Code section 189. Now in subdivision (a) of that section, the list includes "arson, rape, carjacking, robbery, burglary, mayhem, kidnapping," and a few other crimes. The instruction was in error because it used an unenumerated crime (§ 246) as a predicate felony for first degree felony murder. California law has never permitted this.
Second, while certain unenumerated crimes that are inherently dangerous have been permitted to serve as predicates for second degree felony murder, discharging a firearm at an occupied vehicle is not one. In People v. Chun (2009) 45 Cal.4th 1172, 1200, our Supreme Court held that "[w]hen the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction." For this reason, even apart from wrongly classifying the degree of the felony murder, the instructions presented a felony-murder theory that has been invalid since at least 2009.
Third, and in any event, Senate Bill No. 1437 became effective before the November 2020 trial in this case, meaning "the second degree felony-murder rule in California is eliminated." (In re White (2019) 34 Cal.App.5th 933, 937, fn. 2; People v. DeHuff (2021) 63 Cal.App.5th 428, 442.) Only felonies enumerated in section 189 can serve as a basis for a felony-murder conviction, contrary to the jury instruction here. The instruction was erroneous for these overlapping reasons.
II
Had the jury applied the instructions as given, Knigge's guilt on first degree murder would be automatic once the jury found he had violated section 246 by shooting at an occupied vehicle. Under the instruction, if that shooting "caused" the death of another person, even if accidentally, Knigge was guilty of first degree murder. There can be no dispute that the shooting caused the death. This sort of automatic liability for murder is what prompted our Supreme Court to hold that an assaultive felony cannot serve as a felony murder predicate. Otherwise, "'because a homicide generally results from the commission of an assault, every felonious assault ending in death automatically would be elevated to murder,'" which would "'usurp most of the law of homicide, reliev[ing] the prosecution in the great majority of homicide cases of the burden of having to prove malice....'" (People v. Baker (2021) 10 Cal.5th 1044, 1105.)
Remarkably, though, even though the jury convicted Knigge of shooting at an occupied vehicle, it found him not guilty of first degree murder. It convicted him of second degree murder, which confirmed that it believed him responsible for the victim's death. There was no logical way for the jury to reach this result (guilty of section 246, causing the death, but not guilty of first degree murder) on the jury instructions and facts alone. Nevertheless, it was the acquittal on first degree murder that rendered harmless the erroneous first degree felony-murder instruction.
There was no second degree felony-murder instruction, and the standard jury instructions permitted a valid theory of second degree malice murder. This theory was discussed by both sides in closing argument. As the prosecution described that theory in argument, it is that Knigge "intended to kill [the victim] at the time he shot him, but he did not premeditate or deliberate." Knigge's counsel recognized the theory by focusing on premeditation as an element of first degree murder, claiming that the evidence did not support a finding of premeditation, and concluding that "if there's no premeditation, then it's second degree murder."
This is the valid murder theory that the instructions permitted and the reason why we should uphold Knigge's murder conviction.
III
In closing argument, the People mischaracterized the erroneous first degree felony-murder instruction in a way that was contrary to its own litigative interest, but which may have lessened its improper impact.
The felony-murder jury instruction stated that Knigge was guilty even if the killing was unintentional or accidental, and the People made reference to that in arguing the elements of felony murder. Nevertheless, the People also told the jury that the felonymurder theory required Knigge to shoot "intentionally at another person, intending to inflict death." This is in accord with what the People told the court in arguing for the felony-murder instruction, describing it as requiring "intent to kill." It was not, however, in accord with the instruction or the law. "Felony murder liability does not require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony." (People v. Gonzalez (2012) 54 Cal.4th 643, 654.)
Also, the People told the jury that the requirements of premeditation and deliberation-inherently requiring the intent to kill-applied not just to malice murder but also to felony murder, stating if it's "not premeditated and deliberate murder. . .it's also not felony murder." The prosecutor accordingly identified for the jury the possible routes to a murder conviction as "premeditated murder under first degree or felony murder" and "second degree murder."
The prosecution's muddled discussion of the instructions and of the law may help explain why-despite the grievously erroneous instruction allowing a first degree murder conviction on an improper theory-the jury nevertheless rejected first degree murder and reached a second degree murder verdict that, while not logically permitted under the erroneous instructions, was in accordance with the law on second degree murder and well supported by the evidence. I agree that the judgment should be affirmed on that basis.