CC 320, which applies to situations where a witness refuses to testify based on an invalid exercise of privilege, provides as follows:
<Alternative B—Invalid Exercise of Privilege>
[ <Insert name of witness> did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations.]
This instruction is based on the following analysis:
“When a ‘court determines a witness has a valid Fifth Amendment right not to testify, it is . . . improper to require him [or her] to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.'” (People v. Morgain (2009) 177 Cal.App.4th 454, 466, see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.)
Applying Morgain and Lopez, People v. Sisneros (2009) 174 Cal.App.4th 142 held that the jury could permissibly draw a limited evidentiary inference from a gang associate’s refusal to be sworn or testify in the defendant’s trial when she had no legitimate right to refuse to testify. (Id. at pp. 151-152.) The court permitted the jury to consider the associate’s refusal to testify for the limited purpose of supporting an expert’s opinion regarding gang retribution, where the expert was familiar with the associate and had a credible basis for opining that the associate was refusing to testify for fear of gang retribution. (Id. at pp. 152-153.)
In such cases, however, it would be error to give Alternative B of CC 320 without language limiting the jurors’ consideration of the refusal to the gang expert’s testimony. Without such limiting language, CC 320 creates a risk the jury will draw an unsupported evidentiary inference. “[B]efore a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.” (People v. Bell (2004) 118 Cal.App.4th 249, 255, internal citation and punctuation omitted, [jury left to speculate on what it was supposed to infer from defense counsel’s delayed disclosures during discovery].)
Accordingly limiting language should be added to CC 320. People v. Sisneros, supra, 174 Cal.App.4th 142, 152 [“Not only did the trial court specially instruct the jury that Luna’s conduct was to be considered solely as support for the gang expert’s opinion, but it also instructed more generally that evidence admitted for a limited purpose could be considered only for that purpose. Further, the jury was not to speculate as to why “a person other than defendant was or may have been involved in” the charged offenses was not being prosecuted, and the jury was not bound to accept an expert opinion, but “must consider the strengths and weaknesses of the reasons” supporting the opinion.”].)
Sample Instructional Language
You may only consider the witness’s refusal to testify for the limited purpose of assessing the credibility of witness _________ {insert name of gang expert}. Do not consider it for any other purpose.
