California Court of Appeal Mar 27, 2014 No. D061642Unpublished
Filed 3/27/14 P. v. Mace CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061642
Plaintiff and Respondent,
v. (Super. Ct. No. SCS233695)
WILLIAM THOMAS MACE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie
Sontag, Judge. Affirmed.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, William M. Wood and
Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant William Thomas Mace appeals from a judgment of conviction after a
jury trial. Mace was convicted of one count of murder and two counts of attempted
murder in connection with a freeway shooting.
On appeal, Mace contends that the trial court erred in declining to grant use
§ 1324 and In re Weber (1974) 11 Cal.3d 703, 720.) Mace argues that the defendant in a
criminal action should be entitled to have the court grant use immunity to a defense
witness who has knowledge of essential, exculpatory evidence.3
Relying on Hunter, supra, 49 Cal.3d at page 974, and Government of the Virgin
Islands v. Smith (3d Cir. 1980) 615 F.2d 964, 970-971 (Smith), Mace contends that there
3 Use immunity protects a witness only against the actual use of his compelled testimony, as well as the use of evidence derived therefrom. Use immunity may be contrasted with transactional immunity, which protects the witness against all later prosecutions relating to matters about which he testifies. (Kastigar v. United States (1972) 406 U.S. 441, 449-453, 460; People v. DeFreitas (1983) 140 Cal.App.3d 835, 837.) 9
exists a justification for granting judicial use immunity to a defense witness where the
defendant has a " 'due process right to have clearly exculpatory evidence presented to the
jury, at least where there is no strong countervailing systemic interest which justifies its
exclusion . . . .' [Citation.]" (Smith, supra, at p. 970.) Mace's argument fails for two
reasons: (1) Smith, the only authority that supported Mace's position that the judiciary has
the power to grant use immunity, was recently overruled, and there is thus no authority to
support the notion that a trial court may grant use immunity to a defense witness; and (2)
even if Smith remained good law and was binding (or even persuasive) authority, the
proffered testimony did not meet the requirements of the Smith test.
a. Smith is no longer good law
The Third Circuit of the United States Courts of Appeals was, until recently, the
only court to have specifically held that the judiciary has inherent power to grant use
immunity to a defense witness for whom the executive branch has declined to do so.
(See Smith, supra, 615 F.2d 964.) However, in August 2013, that court overturned its
holding in Smith, and concluded that the judiciary does not have the inherent power to
grant use immunity to a witness:
"No statute or Supreme Court ruling authorizes judicial grants of immunity for a defense witness (called for convenience judicial use immunity). We are the only Court of Appeals that permits a trial court to immunize a defense witness. Every other Court of Appeals has rejected this theory of judicial power. Today we do so as well, and overturn that part of Smith that recognizes judicial grants of immunity. Immunity is a statutory creation, bestowed by Congress on the Executive Branch through the federal witness immunity statute, 18 U.S.C. §§ 6002, 6003. The decision to immunize a witness to obtain his testimony is a core prosecutorial function, as immunizing necessarily involves weighing the public's need for
10
testimony against the risk that immunity will inhibit later prosecution of criminal wrongdoing. We, in our corner of the Judiciary, now step away from our reach into this prosecutorial realm." (United States v. Quinn (2013) 728 F.3d 243, 247.)
The legal basis for Mace's argument that the trial court erred in denying judicial
use immunity to Pelayo has thus been overruled. Further, there is absolutely no
independent authority from California courts that would support Mace's position.4 The
absence of any authority to support the notion that the judiciary has the inherent authority
to grant use immunity is reason enough to reject Mace's argument on appeal. However,
even if Smith remained valid authority to support Mace's contention that judicial use
immunity is available, we would nevertheless affirm the trial court's judgment on the
ground that the proffered testimony does not meet the requirements of the Smith test.
b. Even if Smith remained good law, the proffered testimony was not clearly exculpatory or essential
Although we do not agree with Mace that a defendant has the right to compel a
trial court to grant use immunity to a defense witness, particularly in light of the lack of
any remaining authority to support such a position, we nevertheless conclude that even if
4 Although Mace suggests that the California Supreme Court adopted the Smith test in Hunter, supra, 49 Cal.3d at page 973, our review of that case establishes that the Hunter court did not in fact adopt Smith. Rather, in Hunter, the Supreme Court specifically noted that the vast majority of federal and state judicial authority, including authority from California, has rejected the idea that trial court has the inherent power to confer use immunity on a defense witness. (Hunter, supra, at p. 975.) Further, the Hunter court specifically declined to decide whether a court may confer such immunity under the appropriate circumstances. (Ibid.) The Hunter court merely applied the Smith test to demonstrate that even if Smith were applicable, the defendant's case would fail. (Hunter, supra, at pp. 973-975.) We do the same here. 11
Smith, supra, 615 F.2d 964, remained good law and presented binding or persuasive
authority, the Smith test would provide Mace no relief.
Under Smith, in order to establish that judicial use immunity is warranted in a
particular case, a defendant must demonstrate to the trial court that (1) the proffered
testimony is clearly exculpatory; (2) the testimony is essential; and (3) there is no strong,
countervailing government interest against the granting of immunity. (Smith, supra, 615
F.2d at p. 972.) Thus, under the Smith test, immunity would be denied if the proffered
testimony is ambiguous, not clearly exculpatory, cumulative or relates solely to the
credibility of the government's witnesses. (Ibid.)
Pelayo's testimony was not "clearly exculpatory." First, the circumstance of the
interview that formed the basis of his proffered testimony was a leading interview with
defense counsel. Even if Pelayo would have testified consistently with what he said
during this interview, however, Pelayo had made a number of prior inconsistent
statements about what had occurred that day, and the prosecution would have impeached
him with, at a minimum, his prior statements that he was not present at the scene of the
murder. Further, Pelayo's testimony was not essential to Mace's defense. Pelayo's
testimony would have simply been a rehashing of Mace's testimony. Although Mace
argues that Pelayo's testimony would have bolstered Mace's testimony, this is not a
sufficient reason to compel use immunity. Rather, under Smith, the proffered testimony
must not be cumulative (see Smith, supra, 615 F.2d at p. 972); testimony offered to
bolster the defendant's own testimony because of its similarity is cumulative by its nature.
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Even if the Smith test were still good law and could provide authority to support a
trial court granting use immunity, Pelayo's testimony would not satisfy the test. The trial
court therefore did not err in denying Mace's request to grant Pelayo use immunity in
order to allow him to testify freely at Mace's trial.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in denying the defendant's request to grant judicial use immunity to a defense witness, as the judiciary lacks the inherent power to grant such immunity and the witness's testimony failed to meet the requisite standards for exculpatory evidence.
Issues
Whether the trial court erred in declining to grant judicial use immunity to a defense witness.
Whether the judiciary possesses the inherent power to grant use immunity to a defense witness.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“No statute or Supreme Court ruling authorizes judicial grants of immunity for a defense witness (called for convenience judicial use immunity).”
“The decision to immunize a witness to obtain his testimony is a core prosecutorial function”
“The trial court declined to extend judicial use immunity to Pelayo, finding that Pelayo's testimony was not essential to Mace's defense.”