Filed 5/15/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER P. WILSON,

Defendant and Appellant.

 B234519

 (Los Angeles County

 Super. Ct. No. NA084316)

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

Richard R. Romero, Judge. Reversed.

Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Toni R. 

Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant Christopher P. Wilson appeals from the judgment entered following his 

conviction by jury of second degree robbery, false imprisonment by violence, and assault 

with a semiautomatic firearm, with findings that a principal was armed with a firearm, 

defendant used a firearm, and he committed the crimes with the intent to promote 

criminal conduct by gang members. (Pen. Code, §§ 211, 236, 245, subd. (b), 12022, 

subd. (a)(1), 186.22, subd. (b)(1)(C).) Defendant was sentenced to 22 years in prison. 

He contends the trial court erred by allowing the prosecution to introduce the victim‟s 

preliminary hearing testimony and photographs from defendant‟s cell phone and denying 

his motion for new trial.1 We conclude defendant was denied a fair trial and reverse.2

FACTUAL AND PROCEDURAL BACKGROUND

For reasons that will be set forth in detail below, the victim, Lewis Peoples, Jr., did 

not testify at trial. The prosecution was allowed to use his preliminary hearing testimony. 

I. The Prosecution Case

Lewis Peoples, Jr., ran an internet-based radio station from his home in 

Wilmington. He became acquainted with defendant and arranged for him to be 

interviewed on his station. 

At approximately 5:30 p.m. on October 28, 2009, defendant arrived at Peoples‟s 

residence in a vehicle with three others. Defendant asked where a gas station was. 

Peoples told his mother that he was going to direct defendant to a nearby station. The 

party of five got into the car, with defendant in the front passenger seat and Peoples in the 

rear passenger seat behind defendant. The group went to a station and gas was put in the 

car. 

 

1 He also claims cumulative error requires reversal of the judgment.

2 On October 15, 2012, defendant filed a petition for writ of habeas corpus. We 

deferred consideration of the writ pending our review of this appeal. Given the 

disposition of the appeal, the petition is dismissed as moot.
3

The car left the station and did not immediately return to Peoples‟s home. Peoples 

protested, claiming that he had to go home to babysit. The others said they were going to 

take him somewhere. Eventually, they arrived in Long Beach. Defendant asked Peoples 

what he had in his pockets. Peoples replied it was none of his business. Defendant said, 

“You think I‟m playing around?” Defendant produced a handgun and pointed it at 

Peoples. The driver asked, “Oh, are we pulling out guns?” and he also brought out a gun. 

Peoples gave defendant his cell phone and $2. 

The car was driven to another location in Long Beach where defendant tried to sell 

a Gucci bag. There, defendant talked to some individuals, who he referred to as his 

“Goons.” Later, the group stopped in a store parking lot. Defendant told the driver to let 

Peoples out of the car. Peoples went into the store, asked to use the phone to call the 

police, and was refused by a clerk. Peoples walked to his grandfather‟s store where he 

called 911. 

That night, defendant called Peoples and claimed he also had been robbed. 

Peoples responded, “That‟s B.S.” He had no further contact with defendant. 

Peoples said he did not want to testify, but felt compelled because he had been 

subpoenaed. 

King Patterson is Peoples‟s grandfather. At about 6:15 p.m. on October 28, 

Peoples arrived at Patterson‟s place of employment and asked to use Patterson‟s phone. 

Peoples called his mother and Patterson heard him say that he had been taken from 

Wilmington to Long Beach and robbed. Peoples appeared cold and scared. Patterson 

called the police. A tape of the 911 call was played for the jury. 

Christie Patterson is Peoples‟s mother. In court, she was unable to say whether 

she saw someone present who was at her residence on October 28. She admitted that she 

was shown a photographic lineup by a detective and selected a picture of a person. On 

the statement form she wrote, “No. 4 is the guy that came to my house to do a[n] 

interview with my son and went to the gas station with.” Defendant was the person 

depicted in that photograph. 
4

Her son, Peoples, told Patterson that he had a conversation with Long Beach 

Police Detective Gregory Krabbe. According to her son, the detective told him that if he 

did not say the same thing as he had during his preliminary hearing testimony he would 

be prosecuted for perjury. She acknowledged telling the prosecutor and Detective 

Krabbe that she was considering taking her son out of the state so he would not have to 

testify due to her concerns about his safety. 

After the October robbery, Patterson continued to question her son about the 

incident. Over time, she realized that things were not “adding up” to her. Detective 

Krabbe called and informed her that her son told him that he did not want to testify. The 

detective told Patterson that he believed Peoples was concerned with being labeled a 

snitch. 

On June 8, 2010, she and her son signed a statement, which read: 

“I, Lewis Peoples, Jr. am making this statement regarding the matter of People v. 

Christopher Wilson of my own volition, and am under no influence that is either 

improper, undue or both.

“1. After taking into account all of the factors involved and being fully advised 

of the possible consequences, my conscience requires that I make the following 

statement:

“2. The testimony I provided during the preliminary hearing in the abovereferenced matter held on February 3rd, 2010 was factually incorrect.” 

The statement was prepared by an attorney and presented to Patterson and her son. 

She believed she was required to sign it because her son was a minor. The statement was 

received into evidence. 

Patterson admitted telling the prosecutor and detective that Peoples was 

completely consistent when recounting the details of the October incident. She denied 

that her son had been offered work in the music industry if he did not cooperate with the 

prosecution. Peoples told her that his father had arranged for an attorney to help them. 

She did not take her son out of state because the attorney told her to let him take care of 

it. 
5

Long Beach Police Officer Matthew Kennison had a conversation with defendant, 

during which defendant said he was a member of the Filthy Youngs Crew. The Crew 

was affiliated with the Baby Insane and Insane Crip gang. Defendant had several tattoos 

associated with the two gangs. 

On December 11, 2009, Officer Luis Ramirez arrested defendant. During the

booking process, he recovered a cell phone from defendant‟s person. According to a 

gang officer, the photographs on defendant‟s phone depicted his tattoos and various 

scenes, all of which demonstrated his membership and allegiance to the gang. In the 

officer‟s opinion, the crimes against Peoples were committed with the specific intent to 

benefit the gang. 

Detective Krabbe had several conversations with Christie Patterson, some of 

which were recorded. She told him that she was thinking of taking her son out of the 

state so he would not have to testify. She stated she told Peoples‟s father about her plan 

and his father told her not to worry because the attorney he had gotten for her would take 

care of it. The detective asked Patterson about the written statement wherein Peoples 

noted that his testimony was incorrect. When Krabbe tried to ascertain precisely what 

part of Peoples‟s testimony was incorrect, Patterson started to cry and said she was 

concerned for her son‟s life if he testified. She told Krabbe that individuals approached 

her daughter at school and said Peoples was a snitch. Patterson stated that someone 

offered Peoples work in the music industry if he dropped the case. Krabbe had 

investigated many gang crimes and believed it was common for a witness to initially 

cooperate with the prosecution and later attempt to back out due to fear of gang 

retaliation. 

Krabbe asked Peoples how his preliminary hearing testimony was factually 

incorrect and he did not answer. 

II. The Defense Case

Thanh Nguyen works at the store that Peoples said he went into after the robbery. 

On November 9, 2009, a detective came to the store and asked Nguyen whether anyone 
6

came in on October 28 and requested to use the phone to call 911. Nguyen told the 

detective he did not recall anyone doing so. 

DISCUSSION

Defendant‟s principal complaint lies with the trial court‟s ruling allowing the 

prosecution to use Peoples‟s former testimony at the preliminary hearing. It is necessary 

to lay out the sequence of events that led to the ruling.

As set forth above, on June 8, 2010, Peoples and his mother signed a document 

stating that his preliminary hearing testimony was “factually incorrect.” After Detective 

Krabbe received a copy of the statement, he spoke to Peoples and his mother to ascertain 

why the document was signed and what specific testimony Peoples was referring to. 

Krabbe learned that Patterson was concerned for her son‟s safety, certain threats had been 

made in relation to his testimony, and an attorney had been hired to do what he could to 

prevent Peoples from testifying. Krabbe did not discover which of Peoples‟s prior 

statements were incorrect.

On February 7, 2011, the matter was called for trial. The parties discussed the 

June 8 statement. The prosecutor explained he was contacted by an attorney who said 

that he represented Peoples and his mother and that Peoples did not want to testify. The 

prosecutor opined the statement was drafted because the family was concerned that 

Peoples would be in danger if he took the stand. For that reason, the prosecutor did not 

believe Peoples had testified falsely at the preliminary hearing and was ready to proceed. 

Peoples was brought into the courtroom. Under questioning from the court, Peoples 

acknowledged that he had an attorney, but he did not know where the attorney was. The 

court explained to Peoples that he was a witness and asked him whether he had any 

reason to believe that he would not answer questions. He replied, “No, there‟s not.” The 

noon recess was taken. 

At the afternoon session, Peoples‟s attorney was present. He informed the court 

that because portions of Peoples‟s preliminary hearing testimony were “not true,” his 
7

anticipated testimony would conflict and there would be “issues.” The attorney stated, 

“So at this point, he intends to take the Fifth on the questions asked to him regarding his 

preliminary hearing testimony and the incident that is the subject of the prosecution 

here.” 

The prosecutor repeated that he believed Peoples‟s belated claim concerning his 

preliminary hearing testimony was nothing more than an attempt to avoid cooperating 

with the prosecution out of concern for his safety. He stated the Fifth Amendment issue 

was being used in a “fraudulent manner” to keep Peoples off the stand and asked the 

court to inquire further. 

After the court expressed doubt that Peoples had a basis to claim privilege under 

the Fifth Amendment, it asked whether his counsel wanted to make a further showing in 

chambers.3 Counsel agreed to do so. 

Once in chambers, the court asked counsel how Peoples would incriminate 

himself. Initially, counsel said it was his understanding—because he had not gone over 

the matter with Peoples extensively—that defendant‟s attorney had interviewed someone 

who was in the car at the time of the alleged robbery. This witness stated that no crime 

was committed in the car. The court asked counsel if he had spoken directly to Peoples 

and counsel replied, “I have not gone through all of the story, no, I have not.” However, 

counsel told the court that based on what Peoples told him he believed there was no 

robbery and no gun. Finally, the court asked counsel directly whether Peoples 

specifically said there was no gun. Counsel replied yes. The court asked if Peoples said 

there was no robbery, Again, counsel answered yes. The transcript was ordered sealed.

In open court, the court told the parties, “I am trying to choose my words carefully 

because I don‟t want to make inappropriate disclosures, but it appears to me that if 

 

3 We see no reason for the court to have gone into chambers to discuss the matter 

alone with counsel. If the purpose was to protect the attorney-client privilege, the 

presence of Peoples, the holder of the privilege, was necessary. More importantly, if the 

matter had been discussed in open court, the parties would have become aware that 

Peoples was now denying a robbery had occurred. The ensuing flawed trial could have 

been avoided.
8

Mr. Peoples were to testify, he wouldn‟t testify truthfully, he would be opening himself 

up to prosecution for perjury on substantial issues, not minor details. . . . It doesn‟t seem 

that I can force somebody to take the stand when they tell one thing at a preliminary 

hearing and are now telling something else. I would be inclined to think they do have a 

valid privilege.” The court did not disclose that, according to his counsel, Peoples was 

now denying that he had been robbed. Nor did it suggest that the prosecutor interview 

Peoples to ascertain what part of his preliminary hearing testimony was not true.

Peoples was called to the stand and sworn. The prosecutor asked, “Mr. Peoples, 

you‟ve been promised help with your career related to the music industry if you assist the 

defense by avoiding testifying in this case; isn‟t that right?” After Peoples responded that 

he refused to answer and invoked his Fifth Amendment to remain silent, the prosecutor 

asked, “You told your mother that cooperating with the prosecution in this case would get 

you killed; isn‟t that right?” Peoples gave the same reply. After ascertaining that he 

would give the same answer to every question he was asked, the court found Peoples had 

properly invoked his right against self incrimination and deemed him unavailable. As 

noted, the prosecution was allowed to have Peoples‟s preliminary hearing testimony read 

into the record.

Defendant argues the court knowingly allowed testimony it knew to be false to be 

used at trial. He urges the court compounded the error by not disclosing to the parties 

that Peoples had recanted his claim that defendant robbed him. As a result, he contends 

he was denied a fair trial. The Attorney General does not answer defendant‟s charge 

directly, choosing to focus on a party‟s right to use the former testimony of an 

unavailable witness. We conclude defendant has the better argument.

The case cited by the Attorney General, People v. Maxwell (1979) 94 Cal.App.3d 

562, is readily distinguishable. In that matter, after answering some of the prosecutor‟s 

questions, the alleged victim of domestic violence and kidnapping refused to testify 

further. She stated under oath that the basis for her asserting the privilege against selfincrimination was that her answers at trial might subject her to possible charges of 

perjury because her preliminary hearing testimony could be deemed untruthful. (Id. at 
9

pp. 567-568.) The witness was declared unavailable and her preliminary hearing 

testimony was admitted. The trial court found the defendant guilty of the lesser included 

offense of false imprisonment. The conviction was affirmed on appeal. The appellate 

panel concluded that the trier of fact could rely on certain portions of the victim‟s 

preliminary hearing testimony, as it had not been established that her prior testimony was 

false in its entirety. Here, the issue is not one concerning the sufficiency of the evidence. 

Although the facts in the case cited by defendant, People v. Garner (1989) 207 

Cal.App.3d 935 (Garner), do not mirror those in the trial under review, the underlying 

principles in that case are instructive here. In Garner, the sole prosecution witness, 

Phillips, testified at the preliminary hearing that the defendant shot the victim. “At trial, 

however, it was stipulated in open court that Phillips told the deputy district attorney in 

charge of this prosecution, „that at the preliminary hearing he did make a positive 

identification of the defendant, but that he was lying when he did so.‟” (Id. at p. 938, fn. 

1.) Phillips refused to testify, asserting that to do so would allow the prosecution to 

prosecute him for perjury. He was declared unavailable and his preliminary hearing 

testimony was admitted. The jury returned a guilty verdict. The Garner court reversed, 

explaining that “[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.) 

We acknowledge that the present case differs from Garner in certain respects. 

Here, at the time of trial, there was no evidence presented that Peoples lied at the 

preliminary hearing when he testified that defendant robbed him at gunpoint.4 Instead, 

we have an unsworn statement to that effect by an attorney, whose role in this case is far 

 

4

In support of defendant‟s motion for new trial, Peoples signed a letter, declaring 

under penalty of perjury “that the crime [he] reported in 2009 against Christopher Wilson 

was not true.” 
10

from clear.5In chambers, out of the presence of the parties and the witness, counsel 

informed the court that Peoples said he had not been robbed and no gun was present at 

the scene of the incident. As a result, the prosecutor was not informed that Peoples said 

he had lied when he testified that he had been robbed. Thus, the prosecutor did not 

proceed in reliance upon testimony he knew had been recanted. As we will explain, the 

prosecutor‟s lack of knowledge with respect to his witness‟s recantation should not lead 

to a different result than that reached by the Garner court.

We conclude that upon being informed that Peoples had recanted his preliminary 

hearing testimony, the court had an obligation to inform the parties of the situation. If the 

prosecutor had been advised that his only witness to the robbery was now saying the 

crime did not occur, the prosecutor might have determined that there was a reasonable 

doubt as to defendant‟s guilt and dismissed the case. Or, if he still believed that 

Peoples‟s preliminary hearing testimony was truthful, he could have offered Peoples 

immunity, thereby negating a self-incrimination claim. If the trial had continued, Peoples 

would have been cross-examined regarding his recanting of his prior testimony and the 

jury properly would have been called upon to decide which version to credit. 

Instead, as the trial unfolded, the prosecutor presented a great deal of testimony 

showing that Peoples and his mother feared gang retaliation if he testified. That, the 

prosecutor urged in argument, was the reason Peoples did not want to testify and 

 

5

There was substantial evidence that counsel was hired in an effort to keep Peoples 

from testifying due to the fear of retaliation. Christie Patterson told Detective Krabbe 

that fear for her son‟s safety led her to consider moving him out of state. She admitted at 

trial that she chose not to when she was informed that her attorney would take care of the 

problem. The idea that Peoples would commit perjury by testifying in a manner 

consistent with his preliminary hearing testimony was never raised prior to trial. Far 

from it. In a recorded conversation with Detective Krabbe, Patterson said that the 

statement she and her son signed meant that “the little things were incorrect,” not that the 

incident did not occur. She said that on several occasions Peoples told her the “incident 

happened.” Patterson also told the detective that her son was completely consistent when 

recounting the events of the October 28 robbery. All of this inspires little confidence in a 

conclusion that the fear of being prosecuted for committing perjury was the reason 

behind Peoples‟s reluctance to testify. 
11

suggested that an attorney had been hired to put together a vague statement in order to 

give Peoples an out. More significantly, by allowing the trial to continue under the false 

premise that merely some details of Peoples‟s preliminary hearing testimony were 

“factually incorrect,” the court enabled the prosecutor to unwittingly (and obviously 

convincingly) argue to the jury that Peoples‟s written statement meant only that his prior 

testimony suffered from minor inconsistencies. For example, the prosecutor pointed out 

that in his testimony Peoples said he called 911. The tape of the 911 call demonstrated 

that Peoples‟s grandfather was the caller. The prosecutor argued, “So his statement was 

factually incorrect. Was it a lie? That‟s a different question.” 

The point is that was the very question the jury should have answered, but it was 

not given the opportunity. The jury never considered Peoples‟s preliminary hearing 

testimony in light of his current claim to his counsel that it was a lie. It cannot be 

doubted that there is a fundamental difference between knowingly committing perjury

and proffering testimony that is incorrect in some unspecified detail. Nor can one deny 

that the veracity of an admitted liar is subject to more scrutiny than the truthfulness of a 

witness who is simply mistaken in certain particulars.

Our case bears enough similarities to Garner that we find its principles should 

apply here. Although, unlike Garner, the prosecutor did not utilize preliminary hearing 

testimony he knew had been repudiated, the court allowed the only testimony 

demonstrating defendant‟s guilt despite accepting counsel‟s representation that the 

witness had since disavowed it. This allowed the prosecutor to convince the jury, as 

Peoples‟s mother told Detective Krabbe, that Peoples‟s statement regarding his 

preliminary hearing testimony meant only that “the little things were incorrect.” In light 

of the court‟s understanding that the prosecutor‟s theory simply was not true, defendant‟s 

trial was fundamentally unfair. Because the jury was allowed to view the evidence in a 

false light, justice demands that defendant receive a new trial.
12

DISPOSITION

The judgment is reversed.

CERTIFIED FOR PUBLICATION

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.