Filed 11/24/14 P. v. Carrillo CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE OMAR CARRILLO,

Defendant and Appellant.

 B250485

 (Los Angeles County

 Super. Ct. No. KA098896)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gilbert 

M. Lopez, Judge. Reversed.

Doreen B. Boxer, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney 

General, Jonathan J. Kline and Ryan M. Smith, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

INTRODUCTION

Defendant Jorge Omar Carrillo appeals from the judgment entered following his 

conviction by jury of battery of a spouse and attempted criminal threats, with a finding 

that he personally used a handgun during commission of the latter offense. (Pen. Code 

§§ 243, subd. (e)(1), 422, subd. (a), 664 , subd. (a), 12022.5, subd. (a).1) Defendant was 

sentenced to five years in prison and ordered to pay various fines and fees. He contends 

the trial court erred by (1) admitting the victim’s preliminary hearing testimony and 

striking her recanting trial testimony after she invoked her privilege against selfincrimination and refused to complete her testimony at trial, while rejecting defendant’s 

request to submit evidence to impeach the victim’s prior testimony; and (2) failing to 

adequately instruct the jury on the issue of the stricken testimony and the reasons why the 

victim was not testifying. We conclude defendant was prejudiced by the error and 

therefore reverse.

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged with corporal injury to a spouse (count one), criminal 

threats (count two), and dissuading a witness from reporting a crime (count three), with 

the additional allegation as to counts two and three that defendant personally used a 

handgun during the commission of the offenses. The jury trial commenced on April 19, 

2013. 

A. Prosecution’s Case

Yvonne Mora

The prosecution’s principal witness at trial was the victim, Yvonne Mora. 

However, as detailed further below, both on direct and on cross-examination, Ms. Mora 

gave testimony that contradicted statements she previously had made at the preliminary 

hearing regarding facts central to the case. She also testified that she “exaggerated” and 

 

1 All subsequent statutory references are to the Penal Code unless otherwise 

indicated.
3

made untrue statements at the preliminary hearing. As a result, midway through 

defendant’s recross-examination the trial court appointed counsel for Ms. Mora, 

following which she invoked her Fifth Amendment privilege against self-incrimination 

and refused to testify further. The court then declared Ms. Mora, unavailable, struck her 

trial testimony, and granted the prosecution’s request to admit her prior preliminary 

hearing testimony. That testimony was read into the record and made up the bulk of the 

prosecution’s evidence at trial. Ms. Mora testified at the preliminary hearing to the 

following facts:

On July 31, 2012, she received several text messages from defendant, her 

estranged husband, who was at her home watching two of their children. In the messages 

defendant indicated he had found a picture of Ms. Mora with another man and told her 

she was no longer allowed in the house and that he would throw her belongings into the 

yard. Ms. Mora told defendant she was on her way home. 

Ms. Mora said that when she arrived home she checked to see that the children 

were in their rooms because she “kn[ew] something was going to happen.” She went to 

her room and tried to close the door, but defendant came in and started yelling about the 

picture he had found. To defuse the situation, Ms. Mora suggested they go to bed. As 

she was lying down in bed, she felt a “pull” on her right arm. Defendant pulled her arm, 

causing her to fall to the ground and break her fingernail. Defendant then grabbed her 

left arm and twisted it over the dresser, while Ms. Mora tried to pull away and told him 

he was going to break her arm. Defendant also kept yelling at her to get out of the house. 

Ms. Mora was able to pull away, then sat down on the bed and could see the 

“marks” on her arm. She told defendant “this is the last time you put your arms on me. 

I’m done. It’s over. You’re going to pay for this. I’m going to call the cops.” She 

started to dial her cell phone, but defendant said “no, you’re not,” and she saw him pull 

out a gun from between the wall and the corner of the bed. She had seen this gun before 

and recognized it as defendant’s semiautomatic gun. Defendant pulled the gun out from 

a metal lockbox and started putting bullets in the clip. Defendant then told her “you’re 
4

not going to call the cops. If you call the cops, there’s going to be all kinds of shooting 

right now.” He then placed the clip in the gun and pointed it at Ms. Mora. In total he 

pointed it at her two times that night. 

Ms. Mora put her phone down and tried to talk to defendant, asking him what his 

plans were. Defendant stated “‘you’ll see what’s going to happen’” and walked out of 

the bedroom. Ms. Mora went to find her children and told her older son to get his cell 

phone and headphones. She then returned to her room and texted her son to “put on your 

headphones and duck. Your dad has a gun.” Defendant followed Ms. Mora back into the 

bedroom and prevented her from using her phone. When Ms. Mora tried to make light of 

the situation and told defendant she would post a comment on Facebook, defendant 

responded that would be the last thing she would post. 

Once defendant left the bedroom, Ms. Mora sent a group text message to all of her 

contacts in her phone as a “call for help” because “[t]here was going to be shootings.” 

She texted “help. My arm hurt. I’m injured . . . I can’t call the cops.” Her friend 

Marlene Alvarado responded by text that the police were on their way. Ms. Mora and 

Ms. Alvarado then exchanged a series of text messages regarding where defendant and 

the children were and details about the house. Ms. Mora unsuccessfully searched for 

defendant and her car keys, and then locked the doors to the house. Defendant knocked 

on the door and told her to open it, but she refused. Defendant then re-entered the home 

through a bedroom window and “cornered” Ms. Mora with the gun in his hand, saying 

“do something stupid again, and you’ll see what is going to happen to you. . . . ” 

By the time police arrived, Ms. Mora had returned to her bedroom. Defendant 

came into the room holding the gun and asked her whether she had called the police; she 

denied doing so, stating that the neighbors might have called after seeing him enter the 

house through the window. Ms. Mora suggested that defendant go outside and tell the 

police that he had locked himself out and that she would back up his story. Defendant 

went outside and began speaking to the police. Ms. Mora did not see what he did with 

the gun. 
5

Lluvia “Marlene” Alvarado

Ms. Alvarado, known as “Marlene,” testified that she has known Ms. Mora and 

defendant for six years and is a close friend of Ms. Mora. On July 31, 2012, after 

midnight, she received a series of text messages from Ms. Mora that led her to believe 

that defendant was going to hurt himself, the children and Ms. Mora. Ms. Alvarado 

called 9-1-1 and reported that Ms. Mora told her defendant had a gun and said if she 

called the police he would “‘point or shoot.’” The substance of Ms. Mora’s text 

messages was relayed by Ms. Alvarado to the 9-1-1 operator and admitted into evidence 

at trial through a transcript and audio recording of the 9-1-1 call. 

Deputy Sheriff Wong

Los Angeles County Deputy Sheriff Amy Wong testified that she responded to the 

9-1-1 call on July 31, 2012, to Ms. Mora’s residence. Deputy Wong recovered a gun 

inside an unlocked metal box in a linen closet in the home. There was a loaded magazine 

in the box. 

Deputy Wong spoke with defendant that night, after he waived his Miranda2

rights. According to defendant, he came to the house to drop off his son and became 

upset when he found a picture of his wife with another man. She came home and they 

began to argue. He attempted to grab a purse from Ms. Mora, the two struggled over the 

purse, and the purse strap got caught on her left arm, possibly causing her injuries. 

Defendant told Deputy Wong that he then took the gun box out from under the bed, 

unlocked it, took the gun out, “checked it to make sure it was unloaded and put it in a 

safe location.” Defendant told Deputy Wong that he hid the gun in the closet. 

Deputy Wong also spoke with Ms. Mora that night and observed that she had 

injuries. Ms. Mora was very upset, had been crying, and “kept holding her left arm 

because of the injury.” Ms. Mora did not mention a purse to Deputy Wong. Instead, she 

said that defendant grabbed her arm. 

 

2 Miranda v. Arizona (1966) 384 U.S. 436.
6

B. Ms. Mora’s Contradictory Trial Testimony 

As noted above, during her testimony at trial, Ms. Mora offered a number of 

statements that contradicted her preliminary hearing testimony, ultimately leading to the 

striking of her trial testimony and the admission of her preliminary hearing testimony. 

For example, during direct examination at trial, Ms. Mora testified that she sustained her 

injuries when she and defendant were tugging a purse back and forth on her arm. She 

also stated that she did not see defendant remove the gun from the lockbox in the 

bedroom, because his back was to her and she just heard “this clinking” noise. When 

defendant turned toward her, she saw that he was holding a “metal thing” in his hand, 

which she “believed” was his gun. She could not see clearly what he had in his hand and 

then testified that she “never saw the gun.” She denied telling Deputy Wong that she saw 

defendant place the magazine inside the gun, testifying instead that she heard noises that 

sounded like defendant was trying to load the gun, but his back was to her. Ms. Mora 

also denied telling the police that she thought defendant was going to shoot her. She 

testified that she texted her friend, Ms. Alvarado, that defendant had a gun because she 

wanted Ms. Alvarado to call the police so that her children would not blame her for doing 

so. 

On cross-examination, Ms. Mora testified unequivocally that she did not think 

defendant was going to shoot her that day. When asked whether she presently believed

that defendant was loading bullets into the gun, she stated:

“A: No.

“Q: That’s a different story than what you testified at the 

preliminary hearing and also what you told the police 

officers, is that correct?

“A: Correct. . . .

“Q: When you testified at the preliminary hearing when you 

promised to tell the truth . . . and you testified that . . . he was 
7

putting bullets into that clip, that was not a truthful statement, 

was it?. . . .

“A: It wasn’t.”

She also was asked about her prior testimony that defendant “was waving the gun around, 

[saying] there’s going to be a lot of shooting going on if you call the cops.” She denied 

that defendant made those statements “like that.”

On redirect, Ms. Mora stated that she texted Ms. Alvardo not because she wanted 

her to call the police, but because she “wanted her to come and talk” to defendant to help

calm him down. Then, on recross-examination, she admitted that “maybe [she] 

exaggerated or added” and did not tell the whole truth at the preliminary hearing. She 

again stated that defendant did not have a gun in his hand that night. 

C. Assertion of Fifth Amendment Privilege 

At that point, the court called counsel into chambers. The court indicated that, 

given the questions to Ms. Mora “that could tend to incriminate the witness if, in fact, she 

admitted to or indicated that she had committed perjury or was now changing her story,”

Ms. Mora might need to have an attorney appointed for her. The court on its own motion 

then appointed counsel for Ms. Mora. 

Upon resumption of recross-examination (held outside the presence of the jury for 

the purpose of assessing the self-incrimination issue), defendant’s counsel asked Ms. 

Mora whether she previously testified at trial that she did not see defendant handle a gun 

on the day of the incident. After conferring with her counsel, Ms. Mora refused to testify 

further and invoked her Fifth Amendment privilege against self-incrimination. 

Defendant then moved for a mistrial, based on the fact that he was unable to complete his 

recross-examination of Ms. Mora. The prosecution moved to have Ms. Mora declared 

unavailable, have her trial testimony stricken, and her preliminary hearing testimony 

admitted. The court denied defendant’s motion for mistrial and found Ms. Mora 

unavailable pursuant to Evidence Code, section 240, based on her assertion of her 

privilege against self-incrimination. The court further granted the prosecution’s motion 
8

to strike Ms. Mora’s trial testimony. The court then granted the prosecution’s request to 

admit Ms. Mora’s preliminary testimony. 

Immediately following the striking of Ms. Mora’s testimony, the court advised the 

jury as follows: “I’m striking the testimony of Ms. Mora. [¶] That means you didn’t 

hear it. We have it transcribed, but you’re not going to get it if you ask for it. That 

means the direct examination of Mr. Higgins, the cross-examination of Mr. Gibbons, the 

redirect of Mr. Higgins and the partial . . . recross by Mr. Gibbons will not be afforded to 

you. So consider you didn’t hear that testimony. [¶] And there’s legal reasons for that. I

can’t explain them to you. You’re just going to have to rest assured that that’s - - we’re 

going to go forward, and you’re not going to consider that testimony.” Ms. Mora’s 

preliminary hearing testimony (as detailed above) was then read into the record in front 

of the jury.

Both sides rested on April 25, 2013. The following day, defendant requested to 

reopen testimony to put on a private investigator who would testify to statements Ms. 

Mora made following the preliminary hearing that were inconsistent with her preliminary 

hearing testimony, regarding whether she saw defendant with the gun. The court stated it 

would consider defendant’s request, but never expressly ruled on it, and then proceeded 

as if it had been denied. 

D. Instructions to the Jury

In addition to the admonition given during trial, the court again admonished the 

jury during the reading of the jury instructions that “[i]f I ordered testimony stricken from 

the record, you must disregard it and must not consider that testimony for any purpose. 

And I–I did strike testimony from the record of a witness, and so all of it was stricken.” 

But the court also instructed the jury using a modified version of CALCRIM 303: 

“During the trial, the Court struck all of the trial testimony of 

Yvonne Mora. You are not to speculate as to the reason why this 

was done. Although that testimony was stricken, you may, but are 

not required to, consider that stricken testimony for the limited 
9

purpose of assessing the credibility and weight to be given to 

Yvonne Mora’s preliminary hearing testimony that was read into 

evidence. [¶] You may not consider Yvonne Mora’s stricken trial 

testimony for any other purpose. [¶] You may also consider 

Yvonne Mora’s behavior and demeanor in court when determining 

what weight to give her preliminary hearing testimony.”

E. Verdict and Appeal

On April 29, 2013, the jury found defendant guilty of (1) battery upon a spouse, a 

necessarily lesser included misdemeanor offense of count one; (2) attempted criminal 

threats, a necessarily lesser included felony offense of count two; and (3) personal use of 

a firearm during commission of the latter offense. The jury found defendant not guilty on 

count three, dissuading a witness. Defendant’s motion for a new trial was denied on May 

31, 2013. Defendant timely appealed the resulting judgment. 

DISCUSSION

A. The Trial Court Erred in Excluding Impeachment Evidence and in Giving 

Conflicting Jury Instructions

Defendant contends that he was denied a fair trial because of the combined effect 

of the trial court’s rulings regarding Ms. Mora’s recanted testimony. Ms. Mora was 

deemed unavailable as a witness and her trial testimony stricken. When the court 

thereafter denied defendant’s request to introduce evidence to impeach Ms. Mora’s 

preliminary hearing testimony, defendant was left without any means to put before the 

jury the fact that Ms. Mora had recanted key portions of her prior testimony. Defendant 

claims the court compounded this error by failing to tell the jury why Ms. Mora’s trial 

testimony was stricken and by instructing the jury, first, that it could not consider the 

stricken testimony for any purpose and, then, that it could be considered for the limited 

purpose of assessing the credibility of her preliminary hearing testimony. The Attorney 

General does not squarely address defendant’s claim, instead focusing on the fact that 

Ms. Mora’s preliminary hearing testimony was admissible as the former testimony of an 
10

unavailable witness. We conclude that the trial court erred by excluding defendant’s 

proffered impeachment evidence and by failing to clearly instruct the jury as to how to 

properly consider Ms. Mora’s trial testimony and subsequent invocation of the Fifth 

Amendment privilege.

As an initial matter, neither party challenges the trial court’s foundational 

decisions regarding Ms. Mora’s invocation of her Fifth Amendment privilege. The trial 

court appropriately sustained Ms. Mora’s assertion of her right against self-incrimination, 

based upon her trial testimony recanting crucial aspects of her preliminary hearing 

testimony—including whether defendant grabbed and injured her arm, whether she saw 

defendant holding and loading a gun, and whether she was truthful in her text messages 

to Ms. Alvarado. Moreover, Ms. Mora testified at trial that she made untrue statements 

during her preliminary hearing testimony. She was therefore “entitled to invoke this 

privilege and refuse to answer questions which might expose [her] to a prosecution for 

perjury by furnishing a link in the chain of evidence tending to establish guilt of that 

offense.” (People v. Maxwell (1979) 94 Cal.App.3d 562, 570 (Maxwell) [citing People v. 

Lawrence (1959) 168 Cal.App.2d 510, 516-517].)

Consequently, the trial court also acted properly in finding Ms. Mora unavailable 

as a witness based on her invocation of her Fifth Amendment privilege (Evid. Code, § 

240, subd. (a)(1)), and in striking her trial testimony, given that defendant was unable to 

complete his recross-examination once she refused to testify. As defendant argued in his 

motion for mistrial, use of Ms. Mora’s trial testimony would have violated his 

constitutional right of confrontation. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 

I, § 15.)

3

 

3 Defense counsel asserted during oral argument that the jury should have been 

allowed to consider Ms. Mora’s trial testimony for impeachment purposes, and, therefore, 

the testimony should not have been stricken for all purposes. However, defendant does 

not challenge the exclusion of Ms. Mora’s trial testimony as substantive evidence 

following her invocation of her Fifth Amendment privilege, given defendant’s 

constitutional confrontation rights.
11

Defendant also does not dispute the court’s finding that Ms. Mora’s preliminary 

hearing testimony was admissible under the former testimony exception to the hearsay 

rule, since (1) she was unavailable as a witness; and (2) defendant had the “right and 

opportunity” to cross-examine Ms. Mora at the preliminary hearing with “an interest and 

motive similar to that” which he had at trial. (Evid. Code, § 1291). Rather, defendant 

contends that, once the court admitted Ms. Mora’s preliminary hearing testimony and 

struck her trial testimony, it was required to take additional steps to protect defendant’s 

right to due process by providing some means for the jury to consider the fact that Ms. 

Mora had recanted the bulk of her prior testimony.

California courts considering this issue have previously held on several occasions 

that considerations of justice and fairness require that the prosecution’s use of a recanting 

witness’s prior testimony be contingent on some counterbalancing measures. In People 

v. Collup (1946) 27 Cal.2d 829 (Collup), the trial court admitted the preliminary hearing 

testimony of a key witness who was unavailable for trial. The California Supreme Court 

held that contradictory statements made by the witness after the preliminary hearing were 

admissible for impeachment (a result later codified in Evidence Code, section 1202), 

reasoning that otherwise the defendant would be “helpless in meeting the testimony by a 

method which may refute it entirely or cast serious doubts upon its veracity, namely, 

subsequent contradictory statements or admissions by the witness that the testimony was 

false.” (Id. at p. 836.) As a result, “justice and fairness compel” either the exclusion of 

the prior testimony or the admission of the impeachment evidence. (Ibid.)

In People v. Garner (1989) 207 Cal.App.3d 935, 938 (Garner), a witness’s 

preliminary hearing testimony constituted “the only evidence connecting appellant to the 

crime.” The trial court admitted the prior testimony after the witness asserted his Fifth 

Amendment privilege and refused to testify at trial on self-incrimination grounds. (Ibid.) 

The court further barred cross-examination as to the witness’s reasons for refusing to 

testify and instructed the jury, pursuant to CALJIC 2.25, that “‘[w]hen a witness refuses 

to testify as to any matter, [based on] the constitutional privilege against self-
12

incrimination, you are not to draw from that fact any inference as to the credibility of the 

witness, or as to the guilt or innocence of the defendant.’” (Id. at p. 938.) The Court of 

Appeal reversed, holding that not only was CALJIC 2.25 unwarranted in the “unique 

context” of a witness refusing to testify on perjury grounds, but, to the contrary, “it is 

eminently reasonable and proper for the jury to draw an unfavorable inference therefrom 

regarding [the witness’s] credibility.” (Id. at p. 938-939.) 

Ultimately, the Garner court held that because the witness’s admission that he had 

lied at the preliminary hearing occurred after the hearing had concluded, the defendant 

was “completely precluded from questioning his sole accuser concerning a primary issue, 

i.e., the witness’s admission of false swearing,” which resulted in a denial of both 

defendant’s “constitutional right to confront his accuser and to conduct a meaningful 

cross-examination. These deprivations, particularly when combined with the court’s 

repeated CALJIC No. 2.25 admonitions, effectively precluded the jury from determining 

when, if ever, the one witness against him was speaking truthfully.” (Id. at p. 940-941.) 

As a result, “[w]hen the People wish to go forward in reliance upon the testimony of a 

recanting witness, fundamental fairness would require, at a minimum, that the jury (1) be 

advised precisely why the witness is being allowed to refuse to testify, i.e., an alleged 

fear of a perjury prosecution, and (2) be instructed that they should draw all reasonable 

and appropriate inferences therefrom concerning the witness’s credibility and the guilt or 

innocence of the accused.” (Id. at p. 941.)

Similarly, in a recent decision, People v. Wilson (2013) 216 Cal.App.4th 342 

(Wilson), this division reversed a conviction because the trial court failed to disclose to 

the parties the fact that a key witness had recanted his preliminary hearing testimony. 

Without this information, the prosecution proceeded on the theory that the witness was 

invoking his Fifth Amendment privilege because he was concerned for his safety if he 

testified. (Id. at p. 348.) The witness was declared unavailable and his preliminary 

hearing testimony admitted. (Id. at p. 349.) Citing Garner, this court held that the trial 

court’s failure to inform the parties that the witness had recanted denied the defendant a 
13

fair trial, as the jury should have been able to consider the witness’s prior testimony “in 

light of his current claim to his counsel that it was a lie.” (Id. at p. 351.) Instead, the jury 

“was allowed to view the evidence in a false light,” thus compelling reversal. (Ibid.)

Those cases are instructive. Here, the primary evidence that defendant grabbed 

Ms. Mora and threatened her with a loaded gun came from Ms. Mora’s preliminary 

hearing testimony, which was introduced at the prosecution’s request. But the jury was 

not allowed to weigh and consider evidence that impeached the preliminary hearing 

testimony or the fact that Ms. Mora refused to complete her trial testimony after invoking 

the Fifth Amendment privilege. Instead, the jury was instructed to completely disregard 

Ms. Mora’s inconsistent statements made at trial and was never told why Ms. Mora 

became unavailable as a witness. 

In particular, we conclude that the trial court erred in excluding testimony from 

defendant’s investigator, which would have impeached Ms. Mora’s preliminary hearing 

testimony regarding whether she saw defendant with the gun. According to defense 

counsel’s proffer at trial, the private investigator had interviewed Ms. Mora earlier that 

week (thus, after the preliminary hearing) and would testify that Ms. Mora told her that 

defendant did not point a gun at her and that Ms. Mora never saw defendant with the gun 

on the night in question. Defendant argued at trial that this evidence was admissible 

under Evidence Code, section 1202, which allows “[e]vidence of a statement or other 

conduct by a declarant that is inconsistent with a statement by such declarant received in 

evidence as hearsay evidence” to be admitted “for the purpose of attacking the credibility 

of the declarant though he is not given and has not had an opportunity to explain or to 

deny such inconsistent statement or other conduct.” Notably, the Attorney General did 

not address the exclusion of defendant’s witness in her brief on appeal, but conceded 

during oral argument that the exclusion was error. We agree. The testimony of 

defendant’s investigator was admissible as it related an inconsistent statement under 

section 1202 to impeach Ms. Mora’s preliminary hearing testimony: the trial court erred 

in excluding it. (See Evid. Code, section 1202; Collup, supra, 27 Cal.2d at p. 836.) As a 
14

result of the trial court’s rulings, defendant had no way to rebut Ms. Mora’s admittedly 

recanted prior testimony. 

The Attorney General seeks to distinguish Wilson, noting that here the jury did 

hear Ms. Mora recant during her testimony at trial. But that testimony was stricken and 

the jurors were repeatedly instructed to disregard it and treat it as if they “didn’t hear it.” 

Moreover, although the trial court later attempted to cure these issues by instructing the 

jury that it could consider Ms. Mora’s stricken testimony “for the limited purpose of 

assessing the credibility and weight” to be given to her preliminary hearing testimony, 

that instruction was in direct conflict with its preceding instructions not to consider the

trial testimony for any purpose and as a result was too confusing to mitigate the errors 

discussed here. The conflicting instructions as to whether and how the jury could 

consider the recanting testimony, coupled with the failure to advise the jury why Ms. 

Mora was refusing to testify, allowed the jury to view the evidence in a false light. 

The Attorney General also relies on the decision in Maxwell to argue that the 

unconditional admission of Ms. Mora’s prior testimony was proper. However, while the 

court in Maxwell reached the opposite result, the reasoning ultimately supports defendant 

here. In Maxwell, the defendant was convicted following a court trial based primarily on 

the victim’s preliminary hearing testimony. (Maxwell, supra, 94 Cal.App.3d at p. 566.) 

That prior testimony was admitted after the victim testified at trial that she “was presently 

in love with defendant” and refused to testify further, invoking her Fifth Amendment 

privilege. (Ibid.) The Court of Appeal held that the admission of the preliminary hearing 

testimony was proper, based on the witness’s unavailability and the defendant’s extensive 

cross-examination of her during the preliminary hearing. (Id. at pp. 569-574.) The 

defendant also argued that, even if admissible, the preliminary hearing testimony was 

unreliable due to the witness’s assertion of the Fifth Amendment privilege on perjury 

grounds and it therefore could not serve as an adequate basis for his conviction. (Id. at p. 

574.) The court disagreed, reasoning that the trial court, sitting as trier of fact, was free 

to “accept one portion of a witness’s testimony while rejecting another. [Citation.]” (Id.
15

at 574-575.) Crucially, it was for the trier of fact to weigh all of the evidence, including 

the admitted contradictions, and “determine whether [the witness’s] prior or her present 

testimony was truthful and to what extent she lied.” (Id. at pp. 576-577, 578, fn.11.) 

Thus, the court expressly reserved the right to consider the fact that the witness had 

invoked the Fifth Amendment privilege based on a claim of potential perjury in 

determining what testimony to believe. Here, on the other hand, the jury was not able to 

weigh all of Ms. Mora’s contradictory testimony, or even consider the fact that she 

refused to testify on perjury grounds, in order to determine which, if any, of her 

statements were credible. And the jury was further constrained by the contradictory and 

confusing instructions provided by the court.4

Finally, the Attorney General contends that Garner was wrongly decided and that 

it would be improper, pursuant to Evidence Code, section 913, for a trial court to instruct 

a jury to draw any inferences from a witness’s invocation of the Fifth Amendment 

privilege.5 We disagree. As the comments to section 913 make clear, the principal focus 

of that section is to protect a litigant’s constitutional privilege against self-incrimination. 

(Evid. Code, § 913, Comments [“If comment could be made on the exercise of a privilege 

and adverse inferences drawn therefrom, a litigant would be under great pressure to forgo 

his claim of privilege and the protection sought to be afforded by the privilege would be 

largely negated.”].) Garner expressly fashioned a narrow exception in the limited 

circumstances where “(1) the witness’s invocation of the privilege is based upon a 

claimed fear of a perjury prosecution, and (2) it is the People who wish to use this 

witness’s earlier, and assertedly false, testimony as evidence against the accused.”

 

4

Such instructions were not an issue in Maxwell, as the case was tried to the bench.

5

Section 913, on which CALCRIM 320 is based, provides that the trier of fact may 

not draw any inference from a witness’s assertion of the privilege not to testify “as to the 

credibility of the witness or as to any matter at issue in the proceeding.”
16

Garner, supra, 207 Cal.App.3d at p. 942.6 Neither of cases cited by the Attorney General

deal with the circumstance of a non-litigant witness’s invocation based on a fear of 

prosecution for a testimonial crime. (See Griffin v. California (1965) 380 U.S. 609, 615 

[forbidding comment on the accused’s silence]; People v. Bernal (1967) 254 Cal.App.2d 

283 [witness refuses to testify for fear of prosecution in nontestimonial crime].) The 

“unique” exception carved out in Garner reflects the potential tension between protecting 

a defendant’s due process rights and a witness’s right to avoid self-incrimination and 

resolves it largely by mitigating any possible harm to the latter. We see no reason to 

conclude otherwise. 

Accordingly, we conclude that the trial court committed error in excluding 

impeachment evidence regarding Ms. Mora’s recanted testimony and in failing to 

properly instruct the jury on that issue.

B. The Trial Court’s Errors Were Prejudicial To Defendant

The Attorney General contends that any error was harmless, as there was 

sufficient evidence introduced at trial outside of Ms. Mora’s testimony to uphold 

defendant’s conviction. We find that the trial court’s errors in excluding defendant’s 

requested impeachment evidence and in failing to properly instruct the jury regarding Ms. 

Mora’s testimony require reversal, as it appears “reasonably probable” defendant would 

have obtained a more favorable result had those errors not occurred. (People v. Watson

(1956) 46 Cal.2d 818, 836). A reasonable probability under this standard “does not mean 

 

6 Of course, if the prosecution wishes to avoid the potential negative inferences the 

jury may draw from a witness’s invocation of the Fifth Amendment privilege on perjury 

grounds, it may grant the witness immunity from prosecution, thus removing selfincrimination as an issue. (See Garner, supra, 207 Cal.App.3d at p. 941 [describing 

immunity as the “truly preferable approach” as it would allow the jury to hear “each of 

[the witness’s] conflicting tales fully and fairly tested by each [party’s] crossexamination, before they were called upon to determine which version to credit”]; 

Wilson, supra, 216 Cal.App.4th at p. 351.) The prosecution here considered and rejected 

this option. 
17

more likely than not, but merely a reasonable chance, more than an abstract possibility.” 

(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [citing Watson, 

supra, 46 Cal.2d at p. 837; see also Strickland v. Washington (1984) 466 U.S. 668, 693-

694, 697, 698].)

The Attorney General relies on the text messages sent by Ms. Mora and Ms. 

Alvarado’s related testimony as evidence supporting the verdict against defendant, but 

that evidence is affected by the issues surrounding Ms. Mora’s recanted preliminary 

hearing testimony. Specifically, without Ms. Mora’s preliminary hearing testimony 

regarding the veracity of her text messages, Ms. Alvarado’s action in reliance on those 

texts is of little evidentiary weight. Thus, the prosecution cannot use the text messages 

(standing alone) as evidence without relying on the preliminary hearing testimony that 

was erroneously admitted without the counterbalancing measures discussed herein. In 

the absence of the text messages, the remaining evidence consists of Deputy Wong’s 

testimony, including her observation of Ms. Mora’s injuries, recovery of the gun from the 

closet, and the admission by defendant that he had struggled with Ms. Mora over her 

purse and had taken his gun out, “checked it to make sure it was unloaded and put it in a 

safe location.” This evidence, alone, is insufficient to support defendant’s conviction. 

For example, there is no evidence that defendant pointed the gun at Ms. Mora, threatened 

her, or touched her apart from attempting to grab her purse. Thus, “‘after an examination 

of the entire cause, including the evidence’” (Watson, supra, 46 Cal.2d at p. 836), we 

conclude that if the evidence of Ms. Mora’s recanting of her preliminary hearing 

testimony had been put before the jury, it is reasonably probable that this evidence would 

have affected the verdict.
18

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.