Filed 12/19/08 P. v. Joseph CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. HIRAM RAYFIELD JOSEPH, Defendant and Appellant. A117929 (Sonoma County Super. Ct. No. SCR-482238) Hiram Rayfield Joseph (appellant) was convicted, following a jury trial, of possession of a firearm by a felon, possession of a short-barreled shotgun, and possession of ammunition by a person prohibited from possessing a firearm. On appeal, he contends (1) the prosecutor violated his constitutional right to compulsory process by intimidating and threatening a defense witness; (2) his admissions to two prior convictions were invalid; (3) appointment of new counsel at the sentencing hearing resulted in a constructive denial of counsel; and (4) the trial court erred when it failed to stay the sentence on the possession of a short-barreled shotgun count. Because we conclude appellant s constitutional right to present witnesses in his defense was violated, we shall reverse the judgment. PROCEDURAL BACKGROUND Appellant was charged by second amended information with possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1) 1 count one); possession of a short- 1 All further statutory references are to the Penal Code unless otherwise indicated. 1
barreled shotgun ( 12020, subd. (a) count two); and possession of ammunition or reloaded ammunition by a person prohibited from owning or possessing a firearm ( 12316, subd. (b)(1) count three). The information also alleged two prior prison terms ( 667.5, subd. (b)), and one strike pursuant to the three strikes law ( 1170.12). A jury found appellant guilty as charged and appellant admitted the prior prison terms and strike conviction. On May 14, 2007, the trial court sentenced appellant to a total prison term of six years. On May 30, 2007, appellant filed a notice of appeal. FACTUAL BACKGROUND In January 2006, David Aggio, appellant s parole agent, received a request from appellant for permission to move to a home on Estrella Drive in Rohnert Park. Before giving his permission, Aggio interviewed the woman, Dina Rossiter, who already lived there with her two children. He asked if there were any firearms in the residence and Rossiter said there were not and she was concerned because she ha[d] children. On February 17, 2006, Aggio participated in a parole search of the Estrella Drive residence. Aggio asked Rossiter if there was a weapon in the house and she responded that there was a gun underneath the bed. Rohnert Park Police Officer David Rodriguez also participated in the parole search. He searched the master bedroom where he found an unloaded sawed-off shotgun between the mattress and box springs of the bed. Police Officer Steven Luscombe, who also participated in the parole search, found a blue gun case on top of a chest of drawers in the bedroom. The case contained a.9 millimeter Smith & Wesson high-capacity magazine, a manual for a Smith & Wesson handgun, and a Kool cigarette package containing seven shotgun shells. The shotgun and shells were tested for fingerprints, but none were found. Rohnert Park Police Sergeant Eric Robinson was present during the search when Rossiter initially made the comment that it was her gun, or nodded to a question from either [appellant] or somebody else in the affirmative that it was her gun. When 2
Robinson asked if the gun was registered to her, she responded that she had no idea if it was registered. Appellant was arrested and transported to jail. Later that evening, Robinson spoke with Rossiter on the phone and asked her some follow-up questions about the shotgun. He first asked if she knew where the safety was on the shotgun because he could not find it. She responded that she had no idea. When he asked what gauge the shotgun was, she said, I don t know. He asked if the shotgun could shoot two shells at the same time, or only one, to which she responded, I don t know. When he asked how she had acquired the weapon, she said, I don t know, and then asked him to call her back the next day. She also said something like, I never told you I got it [the gun], which Robinson interpreted to mean it was not her gun. During trial, Rossiter asserted her Fifth Amendment right against selfincrimination and refused to answer questions. Troye Shaffer, an employee of the District Attorney s office, testified that she was present during a meeting with Rossiter and the prosecutor, at which Rossiter stated her intention to testify at trial that the gun was hers. The parties stipulated at trial that appellant was previously convicted of a felony. DISCUSSION I. Alleged Violation of Appellant s Compulsory Process Right Appellant contends the prosecutor violated his right to compulsory process by intimidating and threatening defense witness, Dina Rossiter. A. Trial Court Background Before trial, the prosecutor indicated he intended to call Dina Rossiter as a witness. Later, on September 27, 2006, defense counsel indicated that his case would involve Ms. Rossiter as well. The prosecutor then said: She may need counsel, also, it occurs to me, if we could have before she testifies. I am not giving immunity. I m not dissuading her from coming in in any way and taking responsibility for this gun, but if she does she s making judicial admissions to a crime and we don t intend to do that, so perhaps we could have an attorney. [ ]... [ ] For a few minutes to talk with her and 3
make sure she understands what she s doing. The court agreed, and the prosecutor added, That s fine. We have got to walk a delicate balance here, because I in no way want to dissuade her from coming in and testifying, but she needs to be aware of what she s doing. On October 2, 2006, outside of the jury s presence, the court stated that it had appointed Joseph Stogner to represent Rossiter as a witness and advise her regarding her rights. Stogner indicated he had met with Rossiter, they had fully discussed her prospective testimony, and she was going to invoke her Fifth Amendment privilege not to testify. Then, during an Evidence Code section 402 hearing, Rossiter acknowledged that she had met with the prosecutor that morning in the District Attorney s office, and that she had thereafter spoken with Stogner. Upon questioning about the events of February 17, 2006, Rossiter asserted her Fifth Amendment right against selfincrimination and refused to answer questions. Defense counsel then asked that Rossiter s statements to Sergeant Robinson regarding ownership of the gun be admitted into evidence as statements against penal interest. The prosecutor agreed. Later that same day, in front of the jury, Rossiter again asserted her right against self-incrimination and refused to answer questions. After Robinson s testimony, the prosecution rested. That afternoon, defense counsel informed the trial court that he had talked with Rossiter that morning and told her she would be speaking with counsel and that he expected counsel to direct her not to testify. She responded that she understood, but that it was her intention to testify. Counsel then said he had learned about and received a brief summary of a meeting later that morning between the prosecutor and Rossiter just before she met with appointed counsel at which Rossiter reiterated that the weapon was hers. He was surprised to learn thereafter that Rossiter had decided not to testify. Counsel then asked that he be permitted to call a witness who was present at that meeting who could testify regarding Rossiter s further statements against penal interest during the meeting with the prosecutor. 4
The prosecutor then told the court that there had been an investigative interview with Rossiter that morning, which Troye Shaffer, also an employee of the District Attorney s office, attended as a witness to the conversation. Shaffer had typed up a brief summary of what was talked about, primarily it was just to make an introduction to explain the process, to admonish her about being careful on her testimony and not volunteering things pertaining to [appellant s] criminal history. During the interview, according to the prosecutor, Rossiter had confirmed the prosecutor s stated understanding that she planned to testify that the gun was hers. The court read Shaffer s summary of the meeting with Rossiter, which stated: October 2, 2006 Interview with Dina People present: Bob Waner [the prosecutor], Troye Shaffer, Joe Stogner Mr. Waner informed witness that discussions were done in court regarding her testimony and that Mr. Stogner was being appointed as her attorney. Witness confirmed that she has talked to Bernie Hernandez [defense counsel] today and that she was going to testify that the gun was hers. Witness admonished that she should not rattle off the defendant s criminal history [because] that would make it an unfair trial. If she feels that the question being posed to her would make her talk about defendant s criminal history she should pause and tell the court she can t answer the question. She was told that she would be asked about a conversation with Mr. Adaggio [sic]. Witness confirmed that she was subject to a restraining order in 2004 by a Ms. Riley. She is not sure if it is still in effect but assumes so, [because] it was a three year order. Witness confirms that she still lives on Estrella with her two boys. Witness was advised that possession of a sawed off shot gun is a felony and she would be charged. She was left with her attorney to discuss it further. (Italics added.) 5
When the prosecutor offered to prepare a stipulation regarding the meeting, defense counsel said, And, Your Honor, I m not so inclined. I d like to know what transpired, and I just want the record clear, Your Honor, I think Mr. Waner [the prosecutor] has acted appropriately at all times. The court responded, There is no question in my mind of that. Before Shaffer testified at trial, the court, at the prosecutor s request, held an Evidence Code section 402 hearing, at which Shaffer testified that she had prepared a brief report regarding a meeting that morning with the prosecutor and Dina Rossiter. The prosecutor had told Rossiter that it was his understanding that she was going to testify that the gun was hers, to which Rossiter responded, That s correct. The court ruled that Shaffer s testimony about what Rossiter had said about the gun was admissible as a statement against penal interest. Shaffer subsequently presented the same testimony in front of the jury. The following day, October 3, 2006, after a verdict was reached but before the jury was brought in to read the verdict, defense counsel told the court that appellant had just handed him a motion to dismiss based on prosecutorial misconduct and witness tampering. The court said counsel could file it if he wished and counsel asked the court to file and consider it before the jury rendered its verdict. The court looked at the motion and noted that there was no declaration supporting the claim that Rossiter was intimidated. The court stated that it was going to deny the motion without prejudice and that, if appropriate, appellant could refile it as a motion for new trial. Appellant asked on what grounds the court would deny the motion for a mistrial given that, the day before, the prosecution had indicated that Rossiter was going to testify for the defense, but then something mysteriously happened and she comes in moments later like no, I m going to plead the Fifth. According to appellant, this showed clearly that something behind the scenes had just [taken] place. Appellant asserted that Rossiter s sudden change of mind clearly shows that she was intimidated in some form or fashion. 6
The court responded: I appreciate what you are saying, but I have a different take on it. What I heard yesterday was that Ms. Rossiter talked to the attorney that I appointed to represent her, and after speaking to that attorney decided to invoke the Fifth Amendment and not testify, as is her right. But I don t infer any misconduct by the prosecution. Based on that process, I think what occurred was appropriate as far as I saw it, and I am denying the motion at this time. If there is further evidence you want to present, it can be presented on a motion for new trial. After appellant admitted his prior convictions, defense counsel advised the court that it would file appellant s motion as a motion for new trial before the sentencing hearing. Defense counsel apparently never filed a motion for new trial. B. Legal Analysis The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.] As [the California Supreme Court has] observed, [a] defendant s constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant s right to present witnesses. [Citations.] (People v. Lucas (1995) 12 Cal.4th 415, 456.) To prevail on a claim of interference with the right to present witnesses, a defendant must demonstrate, first, misconduct on the part of the prosecutor. To do so, he is not required to show that the governmental agent involved acted in bad faith or with improper motives. [Citations.] Rather, he need show only that the agent engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as to transform [a defense witness] from a willing witness to one who would refuse to testify.... [Citations.] (In re Martin (1987) 44 Cal.3d 1, 31.) Second, the defendant must also demonstrate interference, i.e., a causal link between the misconduct and his inability to present witnesses on his own behalf. To do so, he is not required to prove that the conduct under challenge was the direct or exclusive cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial 7
cause when, for example, it carries significant coercive force [citations] and is soon followed by the witness s refusal to testify [citation]. (In re Martin, supra, 44 Cal.3d at p. 31.) Finally, the defendant must also demonstrate materiality. To carry his burden under federal law, he must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense. [Citation.] Under California law he must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable. [Citations.] (In re Martin, supra, 44 Cal.3d at p. 32.) Here, appellant argues that the prosecutor s warning to Rossiter that possession of a sawed off shotgun is a felony and she would be charged led to Rossiter s sudden decision not to testify, thereby undermining appellant s right to present a defense. 2 In People v. Robinson (1983) 144 Cal.App.3d 962, 969, defense counsel advised a defense witness of her privilege against self-incrimination and the possibility that her testimony could be used against her. Subsequently, the prosecutor began her crossexamination of the witness by telling her: As a representative of the District Attorney s Office, I need to advise you that charges not only can be charged against you, but they will be filed, should you take the stand. (Id. at p. 970.) The witness stated that she was still willing to testify, but after she sought counsel from the public defender, at the trial court s suggestion, she changed her mind and declined to testify further. (Ibid.) 2 We note that appellant raised this issue himself in the trial court by way of a hand-written motion and a verbal discussion with the trial court. The trial court denied the motion without prejudice, and invited appellant to file a motion for new trial if he wished to submit additional evidence. Thus, appellant preserved the issue for appeal. Moreover, even had appellant not objected to the prosecutor s conduct, our Supreme Court has found that failure to object to alleged prosecutorial interference with a defendant s right to present witnesses does not waive the issue since the claim involves a question of fundamental fairness, and any misconduct, had it existed, could not readily have been cured by the trial court s intervention, in contrast to other instances of prosecutorial misconduct in the course of trial. (People v. Lucas, supra, 12 Cal.4th at p. 457.) 8
Division Four of this District held that the prosecutor s warning was an improper threat that deprived the defendant of a witness s testimony. (People v. Robinson, supra, 144 Cal.App.3d at p. 970.) The court also concluded, however, that the misconduct was harmless beyond a reasonable doubt in light of identical testimony given by another defense witness. (Id. at pp. 971-972.) In People v. Bryant (1984) 157 Cal.App.3d 582, 588, a defense witness called to the stand was the only witness to the events in question other than the defendant and police officers. The prosecutor immediately stated that perjury proceedings had been instituted against the witness because he believed the witness had lied at the preliminary hearing about what had in fact occurred. (Ibid.) Once the witness was sworn, the prosecutor further stated that he wanted to inform the witness that if he... testifies... essentially [to] the same things... he did before, in [his] opinion that again would be perjury and he [the witness] would be facing another count. (Id. at p. 589.) In concluding that the prosecutor s warning was misconduct, the appellate court explained that the statement went far beyond reminding the witness of the duty to tell the truth or advising him of the consequences of perjured testimony, and in fact revealed the prosecutor s expectation that the witness [s] testimony would be perjurious if favorable to appellant, as was his preliminary hearing testimony. (People v. Bryant, supra, 157 Cal.App.3d at p. 589.) In finding causation, the court further stated that the prosecutor s statements were intimidating in that only after the prosecutor threatened this material witness did the witness refuse to testify, and the record strongly suggested that the witness was influenced not to testify by the prosecutor s references to perjury charges. (Id. at pp. 590, 594.) With respect to prejudice, the court held that the constitutional rights at issue were so basic to a fair trial that their infraction can never be treated as harmless error.... [Citation.] [Citation.] Therefore, reversal is required without an examination of prejudice. [Citation.] (People v. Bryant, supra, 157 Cal.App.3d at p. 594.) In People v. Warren (1984) 161 Cal.App.3d 961, 967, a defendant was charged with the unlawful taking of a vehicle. The defendant s key witness was expected to 9
testify that he, not the defendant, had stolen the vehicle. Before the witness testified, the court conducted a voir dire examination, during which it advised the witness of his privilege against self-incrimination. (Id. at pp. 967-968.) The prosecutor then conducted his own voir dire examination, during which he told the witness that if he admitted to the crime, the district attorney would be likely to prosecute him. (Id. at pp. 968-969.) The prosecutor then summed up: You can testify or not. If you take the 5th right now, you go back to Y.A. [Youth Authority] and God bless you. If you start testifying, [defense counsel] asks you questions about this crime, I ask you questions about this crime, and we are going to use everything against you we have got. The witness immediately replied, I am taking the 5th right now then. (Id. at p. 970.) A panel of this Division recognized that when a trial court has reason to believe a witness could be charged with a crime arising out of events to which he or she might testify, the court has a duty to ensure that the witness is advised of his or her privilege against self-incrimination. (People v. Warren, supra, 161 Cal.App.3d at p. 972.) We concluded, however, that in the circumstances of that case, the trial court had adequately advised the witness, but the prosecutor s remarks were improper and likely received by the witness as a threat, as shown by his invocation of his Fifth Amendment privilege immediately thereafter. (Id. at pp. 973-974.) In this regard, we noted that the defendant need not establish that the prosecutor s remarks were either the direct or exclusive factor in the witness [s] decision not to testify; all that need be shown is a strong suggestion the comments were the cause. [Citation.] (Id. at p. 974.) We further observed that the prosecutor s power to prosecute infects a prosecutorial admonition of the right of a defense witness not to testify with a perilous potential for improper intimidation; and this is so regardless of the propriety in fact of the prosecutor s motives. (Id. at p. 974.) Finally, we agreed with the court in People v. Bryant that such misconduct should likely be treated as reversible per se, but found it unnecessary to determine the appropriate standard because we could not conclude that the error there was harmless beyond a reasonable doubt. (People v. Warren, supra, 161 Cal.App.3d at p. 975, citing 10
Chapman v. California (1967) 386 U.S. 18, 23.) As we explained, despite the testimony of another defense witness as to what the nontestifying witness had previously told her, the testimony of that witness himself would have carried far more weight than that of [the other witness] relating what [he] purportedly told her. (People v. Warren, at p. 975.) In In re Martin, supra, 44 Cal.3d 1, the defendant, convicted of second degree murder, argued that the prosecutor had interfered with his right to present the testimony of witnesses at trial. Our Supreme Court held that the prosecutor had committed misconduct with respect to several defense witnesses. The prosecution s investigator arrested the first defense witness outside the courtroom, in the presence of other people the investigator knew to be defense witnesses, immediately after the witness gave testimony that contradicted a key prosecution witness. (Id. at p. 33.) A second defense witness was subsequently told that he would also be arrested if he testified as the first witness had. (Id. at pp. 37-38.) Our Supreme Court specifically found that the prosecutor s statement to the effect that [the witness] would be prosecuted for any crime he revealed or committed in the course of his testimony amounts to misconduct under the circumstances of this case. (In re Martin, supra, 44 Cal.3d at p. 40.) Similar statements to the attorneys for two other prospective defense witnesses also constituted misconduct. (Id. at pp. 44, 46, 48.) In addition to demonstrating prosecutorial misconduct, the court found that the defendant had shown a causal link between the misconduct and the refusal of three defense witnesses to testify, and also had shown materiality under both federal and state standards. (In re Martin, supra, 44 Cal.3d at p. 51.) Thus, the defendant had carried his burden of showing that prosecutorial misconduct had interfered with his constitutional right to present the testimony of witnesses at trial. (Ibid.) As to prejudice, the court did not resolve the question whether the violation was prejudicial per se since prejudice appeared under both the federal standard of Chapman v. 11
California, supra, 386 U.S. at page 24, and the state standard of People v. Watson (1956) 46 Cal.2d 818, 835-836. (In re Martin, supra, 44 Cal.3d at p. 51.) In the present case, appellant has shown misconduct on the part of the prosecutor. Regardless of whether he acted with improper motives, the prosecutor s warning went far beyond advising Rossiter of her privilege against self-incrimination and amounted to an unnecessary threat. In telling her that she would be prosecuted if she testified that she owned the shotgun, the prosecutor thus transformed Rossiter from a willing witness to one who would refuse to testify.... [Citations.] (In re Martin, supra, 44 Cal.3d at pp. 31, 40 [prosecutor s warning that witness would be prosecuted for any crime he revealed or committed in the course of his testimony amounted to misconduct]; see also People v. Warren, supra, 161 Cal.App.3d at p. 970 [prosecutor s statement that, if witness testified, we are going to use everything against you we have got was improper]; People v. Robinson, supra, 144 Cal.App.3d at p. 970 [prosecutor committed misconduct when he told witness that charges will be filed, should you take the stand ].) 3 Causation is also present. It is true that Rossiter met with newly appointed counsel just after meeting with the prosecutor. However, that same morning, before her meeting with the prosecutor, when appellant s counsel told Rossiter she would be meeting with appointed counsel who would probably direct her not to testify, Rossiter said she understood, but still intended to testify. We conclude that, even if the 3 Respondent argues that because the prosecutor initially suggested that independent counsel be appointed to advise Rossiter, because defense counsel expressed the belief that the prosecutor had acted appropriately at all times, and because the trial court did not infer any misconduct by the prosecution, no misconduct has been shown. As we have explained, however, the question is not whether the prosecutor acted with bad faith or improper motives. Rather, the question is whether the prosecutor engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as to transform [a defense witness] from a willing witness to one who would refuse to testify.... [Citations.] (In re Martin, supra, 44 Cal.3d at p. 31.) We have concluded that the prosecutor s warning was unnecessary to the proper performance of his duties and therefore constituted misconduct. 12
subsequent meeting with appointed counsel had some incremental effect on Rossiter s decision, the significant coercive force of the prosecutor s warning plainly was a substantial cause of Rossiter s sudden refusal to testify. (In re Martin, supra, 44 Cal.3d at p. 31; accord, People v. Warren, supra, 161 Cal.App.3d at p. 974 [defendant need not establish that the prosecutor s remarks were either the direct or exclusive factor in the witness [s] decision not to testify; all that need be shown is a strong suggestion the comments were the cause ].) This case is similar to People v. Robinson, supra, 144 Cal.App.3d 962, 970, in which the prosecutor advised a defense witness that charges would be brought against her should she take stand. The witness first said she was still willing to testify, but after seeking counsel from public defender, she changed her mind and declined to testify further. (Id. at p. 970.) Despite the subsequent meeting with counsel, the appellate court concluded that the prosecutor s improper threat resulted in depriving the defendant of this witness s testimony. (Ibid.; compare People v. Lucas, supra, 12 Cal.4th at p. 458 [prosecutor s comment was not a substantial cause of witness s decision not to testify where record demonstrated that before prosecutor made allegedly coercive statement, witness s counsel had already advised witness to invoke privilege against selfincrimination because of information witness related about his personal situation ].) 4 Finally, we conclude that appellant has shown materiality. Under the federal standard, he has made, to say the least, a plausible showing that Rossiter s testimony would have been both material and favorable to his defense. (See In re Martin, supra, 44 Cal.3d at p. 32.) Similarly, under the California standard, he has shown at least a reasonable possibility that Rossiter could have given testimony that would have 4 Respondent asserts that, without a declaration from Rossiter regarding why she chose not to testify, there was no showing that her refusal was due to anything the prosecutor said. The evidence already in the record, however, demonstrates causation. Indeed, the evidence here is nearly identical to the evidence in People v. Robinson, supra, 144 Cal.App.3d 962, 970, which convinced Division Four of this District that the prosecutor s warning was at least a substantial cause of the witness s refusal to testify. A declaration from Rossiter was unnecessary to the determination of causation in this case. 13
been both material and favorable. (Ibid.) Rossiter had asserted from the beginning that the shotgun belonged to her and had repeatedly expressed her intent to testify to that effect at trial. Clearly, such testimony was favorable to appellant and would have been material to his defense that the shotgun did not belong to him. Although Troye Shaffer testified at trial that Rossiter had said she intended to testify that the shotgun belonged to her and Sergeant Robinson testified that Rossiter had indicated the gun was hers, obviously Rossiter s own testimony would have carried significantly more weight. (See People v. Warren, supra, 161 Cal.App.3d at p. 975 [explaining that, despite testimony of another defense witness as to what nontestifying witness had previously told her, testimony of that witness himself would have carried far more weight than that of [the other witness] relating what [he] purportedly told her ]; People v. Bryant, supra, 157 Cal.App.3d at p. 588 [noting that nontestifying defense witness was only witness to events in question other than defendant and police officers].) Accordingly, appellant has demonstrated prosecutorial interference with his constitutional right to present the testimony of witnesses at trial. (See In re Martin, supra, 44 Cal.3d at pp. 31-32.) Respondent argues that even if appellant is correct that the prosecutor s warning to Dana Rossiter interfered with appellant s right to present witnesses, appellant cannot show prejudice. We disagree. Even assuming per se reversal is not required in these circumstances, we conclude the constitutional violation in question was not harmless beyond a reasonable doubt. (See In re Martin, supra, 44 Cal.3d at p. 51; [not deciding whether such misconduct is prejudicial per se given prejudice appeared under both federal and state standards of error]; accord, People v. Warren, supra, 161 Cal.App.3d at p. 975.) First, as we have just explained in our discussion regarding the materiality of Rossiter s testimony, Rossiter s own testimony regarding her ownership of the shotgun would have carried far more weight than the second-hand testimony of other witnesses. (See People v. Warren, supra, 161 Cal.App.3d at p. 975.) 14
Second, as to respondent s argument that Rossiter s credibility would have been impeached with evidence that she knew virtually nothing about the shotgun, this fact underlines the potential value of her testimony. She was in essence impeached in absentia when Sergeant Robinson related the telephone conversation he had with her, in which she responded with I don t know to several questions Robinson asked about the gun. In fact, Robinson testified that he interpreted an ambiguous response by Rossiter as indicating the gun was not hers, in effect, saying I got nothing to do with the gun. Had Rossiter actually testified, the jury could have heard directly from her about her claim that the gun was hers as well as the circumstances of her conversation with Sergeant Robinson, without leaving Robinson s personal interpretation of her responses to his questions as the final word on the matter. (See People v. Warren, supra, 161 Cal.App.3d at p. 975.) Moreover, Shaffer s testimony that Rossiter had said she intended to testify the gun was hers might well have confused the jury and caused speculation regarding why she had changed her mind about testifying. Appellant was being prosecuted for possessing the shotgun, along with shotgun ammunition. The prosecutor improperly dissuaded a key witness from testifying. Rossiter s testimony potentially could have provided appellant with a complete defense to the charges against him. Such interference with appellant s right to present witnesses in his defense was not harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24.) For these reasons, reversal of the judgment is necessary. 5 5 In light of this conclusion, we need not address the additional issues appellant has raised on appeal. 15
The judgment is reversed. DISPOSITION Kline, P.J. We concur: Lambden, J. Richman, J. 16