John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, W. Scott Thorpe, Eddie T. Keller and Shirley A. Nelson, Deputy Attorneys General, for Plaintiff and Appellant.
Catherine Aragon, under appointment by the Supreme Court, for Defendant and Respondent.
In this case we consider whether that statutory proscription of comment on the exercise of a privilege, or any other statute, constitutional provision, or rule precludes comment by the prosecutor on defendant's failure to call his former codefendants as witnesses to support his alibi defense. We consider, in particular, whether, in the absence of an actual exercise of privilege by an otherwise available potential witness, comment is precluded because the witness should be deemed to be "unavailable."
The privilege in issue here is the privilege against self-incrimination. A jury convicted defendant of first degree burglary. (Pen. Code, § 459.) The trial court then granted defendant's motion for new trial, concluding that the prosecution's comment on defendant's failure to call his former codefendants to support his testimony was prejudicial misconduct. On appeal by the People taken pursuant to Penal Code section 1238, subdivision (a)(3), the Court of Appeal disagreed, reversed the order granting a new trial, and remanded the matter with instructions to deny the motion and impose sentence.
We conclude that a witness who has not exercised his privilege against self-incrimination is not an "unavailable" witness. Absent a stipulation that [45 Cal. 3d 436] the witness would validly assert the privilege comment is permissible. Because defendant did not call the witnesses and the trial court did not determine that they could exercise their privilege against self-incrimination, the prosecutor's comment was proper. Therefore, we shall affirm the judgment of the Court of Appeal.
Defendant Ford, and his alleged accomplices Paul Bridges, Thomas Cooper, and Napoleon Elder were charged with burglary. Before defendant came to trial, Cooper and Bridges had been convicted, on their pleas of guilty, of being accessories to a felony (Pen. Code, § 32), but had not yet been sentenced. Elder, whose trial had been severed, had not been tried. fn. 2 Therefore, each could have exercised the privilege against self-incrimination had he been called by defendant as a witness at the trial of defendant if answering the questions put to him could possibly have had a tendency to incriminate the witness. (Cal. Const., art. I, § 15; § 940; People v. Kizzee (1979) 94 Cal. App. 3d 927, 938-939 [156 Cal. Rptr. 784].) At that trial the following evidence was presented.
About 10:15 a.m., on April 11, 1984, Christeen Martinez, was visiting her mother-in-law, Irene Martinez. Christeen observed defendant and a Black man conversing with an Hispanic man seated in a rusty green car with a white top parked across the street from the Martinez home. She noticed the three men frequently glance up and down the street as they talked. After approximately 10 minutes they drove away. Shortly thereafter, Christeen and Irene went to the nearby home of Shirley Brushia Williams, described the men and the automobile, and told her to "keep an eye on the street."
The next day, at approximately 10 a.m., while driving home Shirley noticed a White man and a Black man walking down the street who fit the description provided by Christeen and Irene. fn. 3 Shirley continued down the street, parked in a cul-de-sac, and waited for the men to walk toward her. As she waited she observed a Black man and another man driving in a rusty green car with a white top, but did not notice the White man and the Black man she had observed earlier. Her suspicions aroused, Shirley returned home and called the sheriff's office. Waiting for the police to arrive, Shirley, Irene Martinez, Patricia Blair, and several other neighbors huddled on the [45 Cal. 3d 437] sidewalk and within moments observed the green car make two slow passes. Once the car was out of sight the women returned to their homes. While peering out toward the street Patricia Blair observed defendant and a Black man emerge from the yard of a nearby house at 5025 Springfield Way, proceed down Springfield and eventually stop near the green car. fn. 4 Defendant and the Black man were near the green car when Officer Carlson arrived on the scene and began to question them.
While the men were being questioned Patricia Blair approached the home located at 5025 Springfield, opened an unlocked gate, looked through a nearby window, and observed a stereo and other items stacked in a pile. She promptly informed Officer Carlson of her discovery. After learning that all four men had been seen in the area and that defendant and the Black man had been seen leaving the property at 5025 Springfield, Carlson arrested defendant, Bridges, Cooper and Elder.
Linda Jo Klement, the owner of the home located at 5025 Springfield, testified that several of the rooms had been ransacked and her stereo, clock radio, television, and several other items were either stacked or in pillow cases near the front door. She also noticed the front door was unlocked, the screen removed from a kitchen window, and the window was opened much wider than it had been when she left home that morning.
Defendant also testified. He denied any involvement in the burglary. He stated that after spending the morning at the apartment of his girlfriend, Jennifer Pace, he went to the home of Thomas Cooper, arriving there before 11 a.m., on April 11, 1984. Before leaving the Pace apartment he had seen Napoleon Elder at some time between 7:30 and 9 a.m. when Elder came to the door to ask if defendant wanted to run. Defendant had declined. He went to Cooper's house because he and Cooper had been looking for jobs and Cooper had a newspaper. He spent the day of April 11 at Cooper's house where he went through the newspaper looking for jobs, lifted weights, and scraped paint off his car. Defendant claimed he and Cooper left the house at one point to visit an acquaintance but otherwise remained at Cooper's most of the day.
Defendant described his whereabouts on April 12, 1984, as follows: Approximately 9 a.m., he arrived at Thomas Cooper's house, having again come from the apartment of Jennifer Pace. Napoleon Elder's girlfriend lived in the apartment across from that of Pace, but defendant had not seen Elder there that morning. Approximately 9:30 a.m., Paul Bridges and [45 Cal. 3d 438] Napoleon Elder arrived at Cooper's house in Elder's green Ford. Defendant did not know Bridges, but Elder had been on the football team with defendant at American River College. All four men intended to apply for a job that was to be vacated by another friend of defendant and Cooper, and after that to apply for jobs defendant had marked in the newspaper. Shortly thereafter Bridges and Cooper left to put gasoline in Elder's car. Some 15 minutes later Elder, who was irritated at how long Cooper and Bridges were taking, departed. Defendant left shortly thereafter hoping to find Elder, and did so. As defendant joined Cooper and Bridges who were sitting in the front seat and Elder who was standing beside the car, Officer Carlson arrived.
Defendant's evidence regarding his whereabouts on April 11, thus placed him at the home of codefendant Cooper, not on Springfield Way. Not only did that testimony place him at another location, but it placed codefendant Cooper at the other location. His testimony regarding his whereabouts on April 12 again placed him and Cooper, and on this occasion, Elder, at the home of Cooper and away from the house on Springfield Way at the time the burglary was being committed.
During his closing argument the prosecutor made the comment which is the focus of this appeal: "One other thing I would submit to you that it's very convenient that the defendant cannot recall being on Springfield Street on April the 11th. He certainly can't tell you that he was there casing the area. There is just one other point that I would like to make, and that is that if the testimony is indeed true, why didn't he bring in Mr. Cooper, Mr. Elder?"
In reversing the trial court's order granting a new trial, the Court of Appeal relied on the rule stated at 2 Wigmore, Evidence (Chadbourn ed. 1979) section 286, page 201: "When the witness is privileged, and the privilege is independent of the party's control, the witness' claim of privilege renders the party unable to use his testimony; but it would seem that the witness should at least have been summoned and asked, for he may waive his privilege." Because defendant had not attempted to call Cooper or Elder, his claim of prosecutorial misconduct based on a belated assertion that they were "unavailable" was rejected.
[1a] Defendant argues, and the dissent agrees, that whenever a witness is or was a "codefendant" fn. 5 who may exercise the privilege against self-incrimination the witness must be deemed "unavailable" and comment on defendant's failure to call him forbidden. We disagree. Such a rule assumes without foundation that any testimony of a codefendant would necessarily incriminate the codefendant, and fails to recognize well established principles governing exercise of the privilege.
Had Elder and Cooper been called by defendant to corroborate his alibi for April 11, their evidence presumably would have shown that Elder was at the Pace apartment at some time between 7:30 to 9 a.m. on April 11, and that Cooper was at Cooper's home or in the company of defendant at a location other than Springfield Way from and after 11 a.m. on April 11. Nothing in the evidence offered at trial suggests that corroborative testimony by Elder or Cooper, regarding their whereabouts on April 11 would have had a tendency to implicate them, and thus incriminate them, with respect to the April 12 burglary. Defendant does not argue that such corroborative testimony would have been incriminatory. Rather, he suggests that whenever a witness is an unsentenced codefendant who retains the privilege against self-incrimination the witness must be deemed to be "unavailable."
We address first the assumption inherent in this argument that any assertion of the privilege against self-incrimination by a codefendant, or other witness, is an exercise of the privilege by the holder.
 The privilege against self-incrimination is, of course, personal and may be asserted only by the holder. (Rogers v. United States (1951) 340 U.S. 367, 370-371 [95 L. Ed. 344, 347-348, 71 S. Ct. 438, 19 A.L.R.2d 378]; People v. Chandler (1971) 17 Cal. App. 3d 798, 803 [95 Cal. Rptr. 146].) [45 Cal. 3d 440] Defendant recognizes that he had no standing to claim the right on behalf of Cooper or Elder. (People v. Varnum (1967) 66 Cal. 2d 808, 812 [59 Cal. Rptr. 108, 427 P.2d 772].) At their own trials Cooper and Elder had a privilege not to be called as a witness and not to testify (§ 930; Black v. State Bar (1972) 7 Cal. 3d 676, 685 [103 Cal. Rptr. 288, 499 P.2d 968]), as well as a privilege against self-incrimination (§ 940; U.S. Const., Amend. XIV; Cal. Const., art. I, § 15), but as witnesses at defendant's trial they had no right not to be called to the stand. (§ 911, subd. (a).) Their whereabouts were known and they were subject to subpoena. They were, therefore, literally "available."
 It is well established moreover that in order to assert the privilege against self-incrimination a witness must not only be called but must also be sworn. (Ex parte Stice (1886) 70 Cal. 51, 53 [11 P. 459]; People v. Harris (1979) 93 Cal. App. 3d 103, 117 [155 Cal. Rptr. 472].) Were we to accept the proposition that a witness is "unavailable" because he might claim the privilege if called, that prerequisite to exercise of the privilege would be abandoned and the reasons for its existence ignored.
The primary reason for the requirement that the witness be called and sworn was set forth by this court more than a century ago in Ex parte Stice, supra, 70 Cal. 51, 53: "It is no answer to a refusal to be sworn that the petitioner asserted at the time as a reason for such refusal that his testimony would have a tendency to subject him to punishment for a felony. Such a privilege cannot be urged by the witness until a question is put to him after being sworn, the answer to which would have the tendency stated above. Whether the answer to such question would or might be of such tendency, the court in which the trial is proceeding must adjudge (Wharton's Crim. Ev., 9th ed., sec. 469), and it cannot be called on to do so in advance of the question being put. To hold that the reason stated above would justify a person called in refusing to be sworn would be to make such person, and not the court, the final judge, and exclude the court from any consideration of the matter whatever. Such is not and cannot be the law."
[1b] Application of these procedures in the present context -- in determining whether comment is permissible -- is particularly appropriate. Here, the evidence that defendant could have been expected to elicit from Cooper and Elder regarding defendant's whereabouts on April 11 would have established an alibi not only for defendant, but also for both witnesses. Assuming the truth of defendant's testimony, there is no suggestion that responding to questions designed to corroborate defendant's testimony would have had a tendency to incriminate Cooper or Elder. The same is true in most cases where alibi is the defense, whether or not the potential witness is charged with participation in the same crime, fn. 7 since the testimony would exculpate both.
Defendant nonetheless argues that the People should not have been permitted to comment and thereby point out the obvious -- that if defendant's testimony were true he could be expected to call as witnesses those persons in whose company he claimed to be at the time the burglars were apparently "casing" the Springfield Way house. He thus asks the court and prosecutor to assume that his codefendants would refuse to corroborate his testimony even if they could do so without danger of self-incrimination.
A court need not and should not assume that a logical witness would refuse to give testimony that would exculpate both the witness and the defendant, however. Nor should the court assume that, even if testifying would incriminate a witness, in all cases the witness would be unwilling to give truthful testimony that would exonerate a codefendant. Requiring that the witness actually be called even when a possibly incriminating question will be put to him recognizes the possibility that he may waive the privilege.  "A witness does not become incompetent to testify merely because his testimony will incriminate him. The privilege against self-incrimination [45 Cal. 3d 443] is a purely personal privilege, solely for the benefit of the witness, which he may waive if he wishes. (Rogers v. United States, 340 U.S. 367, 370 [95 L. Ed. 344, 347, 71 S. Ct. 438, 19 A.L.R.2d 378]; Steinmetz v. California State Board of Education, 44 Cal. 2d 816, 824 [285 P.2d 617].) Neither the state nor any other litigant is entitled to insist that the testimony of the witness be excluded if the witness himself does not claim the privilege. (People v. Lewis, 222 Cal. App. 2d 136, 146 [35 Cal. Rptr. 1].) ... [¶] ... There is no policy of the law which would prevent a perjurer from recanting his false testimony in time to aid another, even though this course exposes the witness to some risk of further prosecution. It is not inconceivable that a witness who had committed perjury would be willing to confess it and accept the consequences rather than to see an innocent friend convicted of a robbery which he did not commit." (People v. Barker (1965) 232 Cal. App. 2d 178, 181-182 [42 Cal. Rptr. 651].) The same may be said, of course, of an accomplice, or former codefendant witness.
The suggestion of the dissent that when a defendant has testified under oath to facts that a witness could be expected to corroborate without incriminating himself, it is the prosecutor who bears the burden of proving the witness would not assert the privilege against self-incrimination, and therefore is "available," turns logic on its head. The prosecutor cannot know, much less prove whether a witness would testify if asked to do so by the defendant. It is the defendant whose testimony has created the situation that makes the person a logical exculpatory witness. There is nothing unfair in requiring the defendant to bear the burden of establishing that the reason the witness was not called is that he is "unavailable" because he has exercised a privilege.
We are not persuaded otherwise by the authority on which defendant relies. Comment on the failure of a defendant to call a logical witness was condemned by this court in People v. Klor (1948) 32 Cal. 2d 658, 663-664 [197 P.2d 705], and the Klor rule applied in People v. Wilkes (1955) 44 Cal. 2d 679, 687-688 [284 P.2d 481]. In relying on Wilkes defendant, and the dissent, overlook the reasoning of the line of cases culminating in that decision. Comment is forbidden when the comment impermissibly impinges on an assertion by the holder of a privilege he possesses. Although we stated in Wilkes that the defendant "had no power to produce his wife as a witness if she did not consent to testify" (44 Cal.2d at p. 688), that statement assumed the wife had asserted a privilege that a wife then held. Wilkes, itself, relied on Klor which condemned comment on the actual assertion of a privilege by a potential witness. In Klor, as in Wilkes, the defendant was the spouse of the witness. At the time of those trials the defendant spouse as well as the witness spouse could exercise the marital privilege. Penal Code section 1322 then provided: "Neither husband nor wife is a competent witness for or against the other in a criminal action or proceedings to which one or both are parties, except with the consent of both ...."
 The rule of Klor, supra, 32 Cal. 2d 658, and Wilkes, supra, 44 Cal. 2d 679, therefore, is that comment upon exercise by the holder of a privilege impinges on that exercise and is forbidden. That rule is statutory (§ 913) and has no application unless the privilege has actually been exercised. A comment to section 913 by the 1965 California Law Revision Commission notes the reason for the limitation: "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. [45 Cal. 3d 445] Moreover, the inferences which might be drawn would, in many instances, be quite unwarranted." (Deering's Ann. Evid. Code (1986 ed.) foll. § 913, p. 80.) The same comment, however, emphasizes that the section is not intended to limit comment on the state of the evidence. (Ibid.) Here, of course, not only has there been no exercise of the privilege, but the potential witness is not a litigant. Application of section 913 in these circumstances is unwarranted.
Nor does People v. Frohner (1976) 65 Cal. App. 3d 94, 108-109 [135 Cal. Rptr. 153], support defendant. In that case the witness was "unavailable" because he could not be located. The prosecutor was aware that the defendant could not obtain the testimony of the witness. In those circumstances the prosecutor may not invite the jury to speculate that the defendant's failure to call the witness reflects recognition that the testimony would not be favorable to the defense. Although the evidence might support that inference, it is improper to invite a jury to draw the inference if the jury is unaware of an equally plausible inference that the witness has not been called because he cannot be located. Here, by contrast, the defendant made no showing that Cooper and Elder could not be located or were otherwise "unavailable." An invitation by the prosecutor to speculate that the failure to call them as witnesses was because their testimony would not corroborate that of defendant was not conduct which would mislead the jury as to the reason that they were not called, and would not impinge on the exercise of a privilege by either defendant or the codefendants.
In explaining why it adopted that rule the Maryland court reasoned that if the witness had been called and had invoked his right against self-incrimination, the defendant might be damaged. Therefore, to put the defendant to the decision of whether to call him would be "incompatible with our concept that a defendant is innocent until proven guilty beyond all reasonable doubt and that the burden of proof never shifts from the State." (Christensen, supra, 274 Md. at p. 140 [333 A.2d at p. 49].) As we have seen, however, it is not necessary that the witness be called before the jury. Christensen, therefore, is both distinguishable and unpersuasive.
Comment on a defendant's failure to call a logical witness in no way undercuts the privilege against self-incrimination. In Griffin v. California, supra, 380 U.S. 609, the United States Supreme Court held that the Fifth Amendment forbids comment on a defendant's exercise of the privilege against self-incrimination, or instructions by the court that such silence may be considered evidence of guilt. The court did so because "comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice' ... which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." (380 U.S. at p. 614 [14 L.Ed.2d at pp. 109-110].) Manifestly, comment on a defendant's failure to call a witness has no comparable impact on the defendant.
[8a] We recognize that a rule permitting comment on a defendant's failure to call witnesses is subject to criticism if applied when the reason for his failure to do so is ambiguous, or if the defendant is simply standing on his right to have the state prove his guilt. Therefore, the trial court must have discretion to determine when the circumstances of the case are such that comment is not permissible. When the defendant has taken the stand, however, and offered an alibi defense in which he identifies other persons who could support his testimony, and those witnesses are available and subject to subpoena, there should be no question but that comment is appropriate and permissible.
 In holding that a witness must be called, and an assertion of the privilege against self-incrimination upheld by the trial court, as a prerequisite to deeming him unavailable, we do not intend to foreclose preargument rulings that comment is impermissible. fn. 8 Counsel may stipulate that [45 Cal. 3d 448] comment will not be permitted or defendant may satisfy the court that the witness cannot be called or that in the circumstances of the case an adverse inference should not be drawn from the failure to call a witness.
We noted in People v. Rodriguez (1986) 42 Cal. 3d 730, 768 [726 P.2d 113], that fair commentary on the state of the evidence by the trial judge is permitted by both the state and federal Constitutions, emphasizing there that a judicial power expressly granted by our state Constitution cannot violate other rights established by that charter. The propriety of such comment is well established. (Id., at pp. 765-766. See also, People v. Hardy (1969) 271 Cal. App. 2d 322, 330-331 [76 Cal. Rptr. 557], and cases cited.) Since comment by the court is permissible, we see no justification for prohibiting comment by the prosecutor.
Neither principle nor precedent supports the rule which defendant and the dissent seek to establish. Their rule would create a judicial presumption that an entire class of potential witnesses is "unavailable" and comment on their absence would be prohibited solely because the potential witnesses have been charged with the same offense as the defendant. The presumption would apply regardless of whether the testimony that could logically be expected from the "unavailable" witness would be incriminating to the witness, and regardless of the actual willingness of the witness to testify. We decline the opportunity to engage in such judicial rulemaking.
[1c] The prosecutor's invitation to the jury in this case to infer that the reason defendant failed to call Cooper and Elder was that their testimony would not support his alibi did not impinge on the exercise of a privilege and did not mislead the jury as to the reason for their absence.  Because comment inviting the jury to draw a logical inference based on the state of the evidence, including comment on the failure to call available witnesses, is permissible except as limited by section 913 and Griffin v. California, supra, 380 U.S. 609 (People v. Szeto (1981) 29 Cal. 3d 20, 34 [171 Cal. Rptr. 652, 623 P.2d 213]; People v. Vargas (1973) 9 Cal. 3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959]), the comment did not constitute misconduct.
Lucas, C. J., Mosk, J., Panelli, J., and Arguelles, J., concurred.
I dissent. I disagree with the majority's conclusion that Ford's codefendants were "available" and that the prosecutor's comment on Ford's failure to call them as witnesses was proper. The prosecutor's comment implied that defendant could have compelled his codefendants to testify and that the reason he failed to call them as his witnesses is that he knew they would refute his alibi. But Ford could not have compelled his codefendants' testimony and the prosecutor's implication to the contrary was misleading and unfair. The trial court properly granted defendant's [45 Cal. 3d 450] motion for new trial on the ground that "the prosecutor's comment on the failure of defendant Ford's codefendants to testify was improper and prejudicial, in that Eric Ford's codefendants were not available to testify at this trial due to the strong likelihood that they would have correctly asserted their Fifth Amendment privilege not to testify, and that the unavailability of the codefendants was known to the prosecutor, making an advance showing unnecessary." Since the majority offer no reason to interfere with the trial court's application of the law and considered exercise of discretion, we should sustain the trial court's ruling.
In this case, the propriety of the prosecutor's comment depends upon whether or not Cooper and Elder, Ford's codefendants, were available to testify. (See Graves v. United States, supra, 150 U.S. at p. 121 [37 L.Ed. at p. 1023]; Forsberg v. United States (9th Cir. 1965) 351 F.2d 242, 249; People v. Coleman, supra, 71 Cal.2d at p. 1167; see also 2 Wigmore, Evidence, supra, § 287, p. 202.) The majority conclude that they were available to testify because both were subject to subpoena. They further conclude that the codefendants were not rendered unavailable by their present right to assert the privilege against self-incrimination since Ford did not call them as [45 Cal. 3d 451] witnesses in order to compel them to expressly assert the privilege and thereby establish their unavailability.
The majority's approach is flawed in several respects. First, it departs from the cases defining a witness as "unavailable" if the defendant has no power to compel the witness's testimony. Second, it requires the defendant to anticipate the prosecutor's comment and to seek a prior ruling on its impropriety. Finally, it compels a result contrary to that reached by the trial court after a considered exercise of discretion.
Nevertheless, the majority conclude that there is no reason to believe that the testimony of Cooper or Elder would have incriminated them or that the court would have sustained their claim of privilege if they had asserted it. Either Ford was lying, the majority argue, or Cooper and Elder would have simply corroborated his testimony concerning their innocent activities on the day before the crime. This "either-or" approach is misleading and distorts the applicable legal standard. The trial court must sustain a claim of privilege "unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege." (Evid. Code, § 404, italics added.) This determination involves an assessment of the relationship between the witness's potential testimony and his legal status. Speculation about whether or not defendant was telling the truth does not enter into this determination.
Cooper and Elder were logical witnesses to corroborate defendant's alibi. However, they were also charged with the same crime for which defendant was being tried. There is no question that their testimony concerning the events on the day of the burglary and the day before could "possibly have a tendency to incriminate [them]." (Ibid.) The trial court properly determined that they could have correctly asserted their Fifth Amendment privilege not to testify.
Furthermore, even assuming defendant should have established the unavailability of his codefendants prior to the prosecutor's comment, there is no reason to believe that the trial court would have ruled any differently on the propriety of the inference in the context of a preargument motion than it did in the context of a motion for new trial. Both parties fully briefed the issue in connection with defendant's motion for a new trial. After considering their respective arguments, the trial court found the prosecutor's argument inappropriate.
Ford seeks application of the general rule that codefendants must be considered unavailable for the purposes of precluding prosecutorial argument on the defendant's failure to call them as witnesses. fn. 5 In their zeal to reject the general rule, the majority fail to acknowledge the trial court's determination that, on these facts, the prosecutor's argument was improper [45 Cal. 3d 454] and prejudicial, and necessitated a new trial. "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears, and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. [Citation.]" (Shaw v. Pacific Greyhound Lines (1958) 50 Cal. 2d 153, 159 [323 P.2d 391]; see also People v. Robarge (1953) 41 Cal. 2d 628, 633 [262 P.2d 14]; People v. Roubus (1966) 65 Cal. 2d 218, 220-221 [53 Cal. Rptr. 281, 417 P.2d 865]; People v. Montgomery (1976) 61 Cal. App. 3d 718, 728-729 [132 Cal. Rptr. 558]; People v. Cartwright (1979) 98 Cal. App. 3d 369, 381 [159 Cal. Rptr. 543].) The majority do not identify any flaw in the court's considered exercise of discretion, nor do they offer any justification for replacing it with their own.
As established, the trial court's determination that Cooper and Elder could have properly refused to testify is supported by law and logic. Equally reasonable is its determination that Ford did not call his codefendants as witnesses because he believed they would not have testified. The trial court was well within its province to sustain defendant's objection to the prosecutor's comment suggesting that defendant's motives were to conceal unfavorable testimony.
The trial court also acted within its discretion when it determined that its admonition was not adequate to repair the harm caused by the prosecutor's misleading comment. This was not a case in which evidence of guilt was overwhelming. The testimony of two important prosecution witnesses was compromised because of erroneous descriptions of the defendant's race and clothing, and the jury had difficulty reaching a verdict.
Shirley Williams testified that she could not identify defendant as the White man she saw on the day of the burglary because she had not seen his face. But she recalled that he was wearing the same clothing when she first saw him at the scene as when he was arrested directly afterward. She stated that he was wearing a white T-shirt and Levi's. However, a photograph taken by the police following his arrest shows defendant wearing a black coat, blue pants and a dark blue sweatshirt.
Patricia Blair testified that she observed a White man and a Black man leaving the yard of the burglarized home. However, on the day of the crime, she told the officer that she saw a Mexican man and a large Black man emerge from the yard. The officer's written report confirms this version.
The jury, after hearing all the evidence and deliberating over two hours, was divided evenly and was unable to reach a consensus. It requested that [45 Cal. 3d 455] Blair's and Williams's identification testimony be read to them, as well as Officer Carlson's testimony concerning his initial contact with the defendant and defendant's testimony covering the time he left Cooper's house until he was arrested. The trial court's conclusion that the prosecutor's comment prejudicially misled the jury was reasonable.
Though the majority reject the general rule that comment on defendant's failure to call his codefendants as witnesses is improper, they do not conclude that such comment is always proper as a matter of law. Indeed, they acknowledge that the trial court must have discretion to determine when the circumstances of the case are such that comment is not permissible. (Maj. opn., ante, at p. 446.) They completely fail, however, to identify the manner in which the trial court abused its broad discretionary powers in this case.
I would reverse the judgment of the Court of Appeal.
Sadly, the majority misconceives the issues in this case and its misconception has led it to an erroneous conclusion. The issue is not whether the codefendants properly exercised their privileges against self-incrimination, but whether defendant could compel their testimony and whether the trial court abused its discretion in granting a new trial because of the prosecutor's grossly unfair comment on defendant's failure to call the codefendants as witnesses when the defendant could not compel their testimony and the prosecutor had equal ability to call them as witnesses.
With respect to the true issues the dissenting opinion by Justice Broussard is irrefutably correct and I fully endorse the analysis and reasoning therein set forth.
FN 1. Unless otherwise indicated, all statutory references are to the Evidence Code.
FN 2. Elder pleaded guilty to first degree burglary after the trial and conviction of defendant.
FN 3. Shirley was unable to identify defendant as one of these men, but testified that the White man she had seen wore the same clothing as that worn by defendant when arrested, a white T-shirt and Levis. Defendant's girlfriend testified that when he left her house that morning he wore a black coat, blue pants, and a dark blue sweatshirt, a description consistent with the booking photo taken of defendant after his arrest.
FN 4. When interviewed at the scene Blair described the persons she had seen emerging from the yard as Mexican and Black. Defendant is White.
FN 5. A potential witness who is literally a codefendant, i.e., who is being tried jointly with the testifying defendant, has a right not to be called to the stand at all. (§ 930.) Our concern here is with persons who may have been accomplices, but who are being tried separately. For convenience, however, we refer to these potential witnesses as "codefendants," the term used by defendant in his argument.
FN 6. Some courts have approved a procedure whereby the claim may be asserted in a pretestimonial hearing out of the presence of the jury. (People v. Johnson (1974) 39 Cal. App. 3d 749, 758-760 [114 Cal. Rptr. 545]; cf. People v. Chandler, supra, 17 Cal. App. 3d 798, 804-805.) We commend that approach as a means by which to avoid the potentially prejudicial impact of the witness asserting the privilege before the jury.
FN 7. People v. Bartges (1954) 126 Cal. App. 2d 763 [237 P.2d 49] is illustrative of the exceptional case in which evidence offered by the prosecution afforded a basis for concluding that the witness might incriminate himself by testifying regarding his knowledge of and association with the defendant prior to the offense. The witness had been indicted on the same charge, but his trial had been severed. In that case, however, the defendant had not testified to an exculpatory association, and he had called the witness. The witness asserted his privilege against self-incrimination which was honored on a theory that admitting the type of association with defendant that other witnesses had described could have a tendency to incriminate the witness by permitting an inference that he had aided and abetted the defendant.
FN 2. The majority misstate the holding in Wilkes and analogous cases. They assert that the guiding principle in these cases is that comment on defendant's exercise of his privilege is forbidden. This interpretation is only half right and ignores the dual nature of the former spousal privilege. Under former Penal Code section 1322, a defendant's spouse could assert her privilege not to testify for or against the defendant, and the defendant could assert his privilege to prevent his spouse from testifying for or against him. Accordingly, in this context, there are two reasons for prohibiting comment. Comment is improper both because it implicates the holder's exercise of his privilege and because it inaccurately implies that he could compel his spouse's testimony.
FN 4. Herein lies the essential difference between our position and that of the majority. The majority assert that because the prosecution could not predict whether Ford's codefendants would testify, it is entitled to rely on the utterly untenable assumption that codefendants who stood the risk of self-incrimination nevertheless would have testified. By testifying, the majority contends, defendant assumed the burden of establishing that his codefendants' would not have testified in order to prevent the prosecution from arguing to the contrary. It is more logical to assume that codefendants who are charged with the same crime as that for which defendant is being tried are not likely to testify. The party who seeks to argue otherwise should bear the burden of refuting this assumption by establishing the facts upon which its argument rests.
FN 5. The rule is followed in several other states. (State v. Cavness (1963) 46 Hawaii 470 [381 P.2d 685, 686]; Morgan v. State (1972) 49 Ala.App. 330 [272 So. 2d 256, 259-261]; Christensen v. State (1974) 274 Md. 133, 139-140 [333 A.2d 45]; Hadley v. State (1975) 165 Ind.App. 416 [332 N.E.2d 269, 272]; see also 29 Am.Jur.2d, Evidence, § 181 at p. 228; Gershman, Prosecutorial Misconduct (1986) § 10.3(b), pp. 10-24.).


In Swanson v. Brewster, Ct. File AO8-8O6, a decision of the Minnesota Supreme Court released on June 29, 2010, the court held that negotiated-discount amounts—amounts a plaintiff is billed by a medical provider but does not pay because the plaintiff’s insurance provider negotiates a discount on the plaintiff’s behalf—are “collateral sources” for purposes of the collateral-source statute, Minn. Stat. § 548.251 (2008).
In the case, David Swanson sued Rebecca Brewster and Christopher Brewster to recover damages for personal injuries Swanson sustained after a motor vehicle owned by Christopher and driven by Rebecca collided with his motorcycle. A jury trial was held to determine the amount of Swanson’s damages, and the jury awarded Swanson damages including $62,259.30 in past medical expenses. Swanson incurred $62,259.30 in medical bills at Regions Hospital and other medical providers. However, In discharge of the obligation, Swanson paid $1,169.80 in copayments and HealthPartners paid $17,643.76. The remaining amount, $43,445.74, was forgiven because the medical providers apparently discounted their medical services for Swanson as an insured of HealthPartners. It was undisputed that because HealthPartners was able to negotiate a discount on Swanson’s behalf, the entire $62,259.30 amount was discharged and Swanson would never be responsible for the amount by which Swanson’s medical bills were discounted. In anticipation of future litigation, State Farm, the Brewster’s liability insurer, paid HealthPartners $10,500 for HealthPartners’ subrogation rights against whoever may be liable for Swanson’s injuries. In accordance with Minnesota’s collateral-source statute, Minn. Stat. § 548.251 (2008), the trial court reduced Swanson’s award by the amount HealthPartners paid to Swanson’s medical providers, $17,643.76. The Brewsters appealed the court’s determination, arguing that Swanson’s award also should have been reduced by the discount HealthPartners secured for Swanson through negotiation with Swanson’s medical providers. The Brewsters asserted that the discount is a collateral source as defined by Minn. Stat. § 548.251 and therefore the court erred when it failed to deduct the negotiated-discount amount from Swanson’s damage award. The Supreme Court reversed. It held the negotiated discount was unambiguously a collateral source for purposes of the collateral-source statute. A negotiated-discount amounts—amounts a plaintiff is billed by a medical provider but does not pay because the plaintiff’s insurance provider negotiated a discount on the plaintiff’s behalf—are “collateral sources” for purposes of the Minnesota collateral-source statute, Minn. Stat. § 548.251.
Note that the rule is different in the context of the No-Fault Act. Stout v. AMCO Insurance Co., 645 N.W.2d 108 (Minn. 2002). Stout held that a no-fault insurer must provide basic economic loss benefits “even when the injured person is entitled to compensation for the same loss from a different source.” Accordingly, the no-fault insurer had to compensate Stout for the entire amount billed up to policy limits; Stout’s damages were not reduced by the negotiated discount amount. The Supreme Court in Brewster noted that the collateral-source statute is different from the No-Fault Act in form, purpose, and function.
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[294 U.S. 231, 232] Mr. John F. Anderson, of Washington, D.C., for petitioner.
A trustee in bankruptcy asserts a claim against the receiver of a national bank for the value of property received by the bank as an unlawful preference. The receiver admits the validity of the claim if it is placed upon the same level as the claims of creditors at large. The trustee insists that the claim must have priority on the ground that the avails of the unlawful preference are subject to a trust. [294 U.S. 231, 233] In September, 1928, the bankrupt, John Fitzgerald, had overdrawn his deposit account with the Farmers' National Bank of Pekin, Ill., and was also indebted to the bank upon promissory notes. In response to a demand for collateral security he delivered to the bank notes of other persons, as well as a certificate of stock, the whole of the face or par value of about $35,000. Most of the securities so delivered have been returned to the trustee and are not in controversy now. Four items only are the subject of this suit.
The bank received from Fitzgerald on September 7, 1928, a certificate for ten shares of its own stock, a promissory note of Charles Graff for $3, 000, a promissory note of W. C. Sommer for $1,000, and notes or bonds of Veesaert for $5,000, reduced later by $1,597.31 paid upon account. Within a period of four months (on October 26, 1928), creditors of Fitzgerald filed a petition in bankruptcy, an adjudication following in November of that year. No election was made by the trustee in bankruptcy to reclaim the collateral as an unlawful preference till July 20, 1929, or if there was an earlier election, it is not shown by the record. In the meantime the bank, which continued as a going concern until January, 1932, had disposed of three of the contested items of security as follows: On February 9, 1929, after having credited the bankrupt with a dividend of $ 30, it sold the ten shares of its own stock to one Cullinan, a depositor. The price was $3,000, by concession the fair value. Payment was effected by charging the deposit account of the purchaser with what was owing for the shares. On April 12, 1929, the bank collected $3,183.78 upon the note of Charles Graff by charging that amount against the deposit balance to his credit. On April 16, 1929, it collected $1,059.98 upon the note of W. C. Sommer by a charge against his balance. Nothing was received upon the Veesaert bonds, the fourth contested item, till December, [294 U.S. 231, 234] 1930. The bank then had a payment on account to the extent of $1,597.31 the payment being made by the deposit of a check to its credit in the First National Bank of Chicago, Ill. The balance in that account was afterwards reduced to $776.57, which latter amount, together with the bonds themselves, the receiver stands ready to transfer to the trustee.
The election by the trustee to reclaim the collateral securities in behalf of the estate was announced, as we have seen, on July 20, 1929, and was manifested by the beginning of a suit for appropriate relief. No charge was made that the transaction was voidable for any actual fraud. The suit was under section 60b of the National Bankruptcy Act (11 U.S.C. 96(b), 11 USCA 96(b) upon the ground that the effect of the transaction was to prefer one creditor over others, and that the creditor, the bank, had reasonable cause to believe that such effect would follow.* Under Schoenthal v. Irving Trust Co., 287 U.S. 92 , 53 S.Ct. 50, an action at law could have been maintained for the recovery of the property or its value. Without objection, however, the suit was tried in equity. Cf. Buffum v. Peter Barceloux Co., 289 U.S. 227, 235 , 53 S.Ct. 539. It ended on June 24, 1932, in a decree invalidating the transactions of September 7, 1928, as constituting a forbidden preference, and directing the return of the securities, or the value of such as had been converted into money.
During the years of litigation the bank had suffered reverses, and on January 8, 1932, it was closed by the [294 U.S. 231, 235] Comptroller of the Currency. The receiver appointed by the Comptroller was not a party to the suit to invalidate the preference. After the entry of a decree, the trustee in bankruptcy petitioned for an order instructing the receiver that the four contested items were a preferred charge upon the assets, and that payment should be made accordingly. The District Court granted the relief prayed for, and upon appeal to the Court of Appeals for the Seventh Circuit the order was affirmed. 70 F.(2d) 956. A writ of certiorari issued from this court. 293 U.S. 547 , 55 S.Ct. 122, 79 L.Ed. --.
If we except a small item conceded by the receiver, we think the reasons are inadequate for the imposition of a trust in the nature of a preference upon the funds of this insolvent bank.
1. For convenience the first of the contested items, the proceeds of the stock certificate, will be considered by itself, the conclusion appropriate for this item being typical of the conclusion appropriate for the others.
The acceptance by the bank of the certificate delivered by Fitzgerald on September 7, 1928, was not a wrongful act whereby the bank forthwith became subject to the duties and liabilities of a trustee ex maleficio. One who acquires a security with reasonable cause to believe that the effect will be a preference does not from that alone become a party to a fraud. Van Iderstine v. National Discount Co., 227 U.S. 575, 582 , 33 S.Ct. 343; Watson v. Adams (C.C.A.) 242 F. 441, 444, 445; Dean v. Davis, 242 U.S. 438, 444 , 37 S.Ct. 130; Keppel v. Tiffin Savings Bank, 197 U.S. 356 , 25 S.Ct. 443; Carson v. Federal Reserve Bank, 254 N.Y. 218, 234, 172 N.E. 475, 70 A.L.R. 435. If bankruptcy is averted altogether, or postponed beyond four months, the security will stand, though a preference was intended at the time of its acceptance. So also a change of assets or liabilities before bankruptcy arrives may mean the difference between a preference and a ratable division. Haas v. Sachs (C.C.A.) 68 F.(2d) 623; Irving Trust Co. v. Townsend (C.C.A.) 65 F.(2d) 406, 408; Mansfield [294 U.S. 231, 236] Lumber Co. v. Sternberg (C.C.A.) 38 F. (2d) 614, 617; Rogers v. Page (C.C. A.) 140 F. 596, 606; In re Henry C. King Co. (D.C.) 113 F. 110, 111; Rubenstein v. Lottow, 223 Mass. 227, 229 et seq., 111 N.E. 973. The bank took the risk that in future and indeterminate contingencies it might be compelled to return what it accepted or the value. At the outset it was not a trustee ex maleficio or otherwise. It was a bailee and nothing more.
If a trust was not created in September, 1928, through the acceptance of a security which has turned out to be a preference, none was in existence on February 9, 1929, when part of that security, the certificate of stock, was delivered to a purchaser. True, by that time the debtor was in bankruptcy, but the other uncertainties, for anything here shown, were as indefinite as ever. The accurate determination of assets and liabilities had still to wait upon the process of proof and liquidation. At most the security was voidable, not void, and the trustee up to that time had made no move to avoid it. A suit would have been a sufficient election, even though not preceded by a demand (Eau Claire National Bank v. Jackman, 204 U.S. 522, 534 , 535 S., 27 S.Ct. 391; Stephens v. Pittsburgh Plate Glass Co. (C.C.A.) 36 F.(2d) 953), but as yet there had been no suit, nor statement that a suit was coming. To turn the bank into a wrongdoer in the absence of actual fraud, to charge it with all the liabilities growing out of a constructive trust, there was need of some act of avoidance that would put the brand of guilt upon it. Cf. Boyd v. Dunlap, 1 Johns. Ch. (N.Y.) 478, 482, per Kent, Ch. We hear of no such act till July, 1929, when the trustee in bankruptcy brought suit to declare the preference a nullity.
The sale of the stock certificate to Cullinan on February 9, 1929, must be approached and considered in the light of the relation then existing. There was then no [294 U.S. 231, 237] trust ex maleficio, whereby the bank was chargeable as a wrongdoer for parting with the shares. There was no trust implied in fact, unless it be the fiduciary obligation assumed by a bailee to act with prudence and fidelity in the disposition of the pledge. The trustee does not assert that this obligation has been violated. On the contrary he concedes that the price was equal to the value. With its duty thus defined and measured, the bank agreed with Cullinan to accept payment of the price by cancelling to an equivalent extent the debt due him as a depositor. Cf. Jennings v. United States Fidelity & Guaranty Co. (Feb. 4, 1935) 294 U.S. 216 , 55 S.Ct. 394; Old Company's Lehigh, Inc., v. Meeker (Feb. 4, 1935) 294 U.S. 227 , 55 S.Ct. 392. We do not need to consider whether effect would be given to such an agreement according to its form if the bank at that time had been under a present duty to set up a trust as to the proceeds to the use of the bankrupt or of the trustee as his successor. For the purposes of this case we assume, though we do not hold, that a trust in that event would attach to the cash assets in the vaults to an equivalent amount. A different result follows when there is neither trust to be set up nor wilful wrong to be repaired. The bank, when it parted with the certificate, had a solvent, going business, and did not make the transfer with any fraudulent or obstructive purpose. There is no reason in such circumstances why the transaction should be treated retrospectively as something other than it was meant to be. Jennings v. United States Fidelity & Guaranty Co., supra. Equity fashions a trust with flexible adaptation to the call of the occasion.
Other remedies were at hand sufficient for the needs of justice. When the preference was avoided, the bank became chargeable like any common law debtor with a duty of restitution to the extent of the value of the property disposed of. There might even be a duty, if the proceeds [294 U.S. 231, 238] were intact, to make return in specie. But what is here sought is very different. By a process of analysis a unitary transaction, the cancellation of a debt to a depositor, is treated as if split up into two parts, a fictitious withdrawal by the depositor of coin or other currency, and its return to the bank to be applied upon the purchase. The money so returned is then subjected to a trust and though mingled with other money is viewed as retaining its identity so long as any portion of the fund is discovered to be intact. These fictions and presumptions may serve well enough in their application to one whose act is against equity and conscience at the time of its commission. They may be implements of justice in cases of theft or actual fraud. So, at least, we now assume. In circumstances less flagrant, they will be used more charily. They will not be so applied as to impose a trust by relation upon moneys that have entered into 'the stream of the firm's general property' (Holmes, J., in National City Bank v. Hotchkiss, 231 U.S. 50, 57 , 34 S.Ct. 20, 21), and are distinguishable no longer.
For nearly three years after the sale of this stock, the situation stood unchanged. An adequate remedy against the bank through the recovery of an ordinary money judgment belonged to the trustee continuously, and this whether the award of the value was to be at law or in equity. Schoenthal v. Irving Trust Co., supra; Buffum v. Peter Barceloux Co., supra. There was no attempt during those years to separate the proceeds of the sale from other assets through an injunction or a receivership, nor any hint of a desire to charge a trust upon the proceeds. Not till the suit was at an end and the bank was in the hands of the Comptroller of the Currency did the respondent shift his theory and turn a debt into a trust. By that time new duties had arisen, new interests had intervened. The assets of the bank were now [294 U.S. 231, 239] held by the receiver upon a trust for equal distribution. Cf. Wisdom v. Keen (C.C.A.) 69 F.(2d) 349, 350; Fera v. Wickham, 135 N.Y. 223, 230, 31 N. E. 1028, 17 L.R.A. 456; Gerseta Corp. v. Equitable Trust Co., 241 N.Y. 418, 425, 150 N.E. 501, 43 A.L.R. 1320. The shift had come too late.
2. What has been said as to the sale of the stock certificate to Cullinan applies with equal force to the second and third of the contested items, the Graff and Sommer notes.
The collections on these notes were made in April, 1929. They were made, not in cash received over the counter, but by cancellation of a debt owing to the makers upon their deposit balance in the bank. There was neither trust, nor claim of trust, until the bank had suspended, and was in the hands of a receiver.
3. The fourth contested item, the collection on the Veesaert bonds, differs from the others in that the payment was received after the trustee in bankruptcy had elected to avoid the preference and had sued for that relief.
The payment was made as we have seen, by the deposit of $1,597.31 in the First National Bank of Chicago, Ill.
The balance in that account was reduced in 1931 to $776.57. What became of the difference ($820.74) there is nothing to inform us. Evidence is lacking that it was withdrawn in such a form or for such purposes as to be represented by any assets forming part of the estate today. The receiver consents that this item of $776.57, the balance in the Chicago bank, be paid to the respondent as a preferred charge upon the fund.
The decree is reversed and the cause remanded for further proceedings in accordance with this opinion.
[ Footnote * ] 'If a bankrupt shall ... have made a transfer of any of his property, and if, at the time of the transfer, ... and ... within four months before the filing of the petition in bankruptcy, ... the bankrupt be insolvent and the ... transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such ... transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person . ...' Section 60b, 11 U.S.C. 96(b), 11 USCA 96(b).

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