O P I N I O N

APPEAL from the Superior Court of Riverside County. Curtis R. Hinman, Judge. (Judge of the Municipal Court, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

Jill Lansing, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Niki Shaffer, Supervising Deputy Attorney General, and Gary W. Brozio, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Scott Lee Matz appeals after he was convicted of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). He raises a number of contentions on appeal, but we find one issue dispositive: The court allowed the prosecutor to grant defendant immunity as to an unrelated charge, for the sole purpose of requiring defendant to admit that charge before the jury here. The facts of the unrelated charge had no relevance except to undermine defendant's character for honesty. Defendant contends the "immunity" he was afforded in place of his Fifth Amendment privilege not to incriminate himself was not commensurate with the scope of his privilege. Thus, forcing him to testify for the sole purpose of making him destroy his own credibility violated the immunity statute and his constitutional privilege. We agree, and we reverse.

FACTS AND PROCEDURAL HISTORY

Defendant was friends with both the victim, Bobby Goodwin, and Debbie Jones. In fact, defendant and Goodwin were rivals for Jones's affection, which led to the incident between them.

During the trial, defendant admitted stabbing Goodwin, but claimed he did so in self-defense. Thus, the judgment turned not primarily on disputed facts, but on the key issue of credibility: Was defendant afraid of Goodwin when he stabbed him?

At the time of the assault, defendant was 24 years old. He was five feet seven inches tall, and he weighed one hundred ten pounds, "[i]f I was lucky." Goodwin was 28 years old; he was 6 feet tall and weighed 185 pounds. Goodwin had studied martial arts. He had a 55-pound punching bag in his grandmother's back yard. He practiced punching and kicking the bag up to eight hours a day, six or seven days a week. He had been practicing the martial arts intensively for "13, 14, 15 years," and he testified that he knew "as much as any sensei [martial arts teacher]."

Goodwin lived in his grandmother's back yard, not inside the house. Goodwin liked to live outside because he had problems with people and often got into fights, so he preferred to be alone. Goodwin lived next door to Jones's mother.

Defendant first became friends with Jones when she was living with her mother. At some point, she left her mother's and moved into another residence.

Through Jones, defendant met Goodwin. Defendant and Jones began a romantic relationship. Approximately three months before the stabbing incident in question here, Jones stopped dating defendant and began dating Goodwin.

On November 10, 1996, Goodwin was at his grandmother's house. Defendant rode up on his bicycle and approached Goodwin, saying he was looking for Jones. While defendant and Goodwin were talking, Jones arrived. Defendant talked to Jones about getting his clothes and his father's toolbox from Jones's house.

Defendant left on his bicycle. Jones asked Goodwin to walk her home, a few blocks away. In a short time, defendant, Jones and Goodwin all ended up at Jones's house.

Goodwin saw Jones on the porch with a broom, trying to block defendant from entering the house. Defendant and Jones were yelling heatedly at each other. Goodwin did not remember seeing Jones swing the broom at defendant. Goodwin testified he wanted to get defendant away, to ask him to go for a walk with Goodwin. Goodwin came within six or seven feet of defendant, and called defendant's name to get his attention. Goodwin denied reaching toward defendant, striking or kicking him. Defendant turned and, in one motion, stabbed Goodwin. Goodwin at first did not realize he had been stabbed; he thought defendant had just shoved at him with his hands.

Jones testified defendant had a plastic bag with his clothes and a knife on the handlebars of his bicycle. Defendant also wanted to get his toolbox from her house. Jones and defendant were arguing. Jones went inside to get the toolbox, and she gave it to defendant. Afterward, she fetched a broom because defendant would not leave. Jones tried to hit defendant with the broom, but he blocked it with the toolbox. After Jones tried to hit defendant with the broom, Goodwin intervened. Jones saw Goodwin putting his hand in front of defendant's face, and "it looked like he flicked him or made some kind of motion with his hand. It looked like he flicked him in the face, to me." Goodwin "just kept coming at [defendant]," and kept walking toward him. Jones saw defendant turn toward Goodwin, and she saw a motion as if Goodwin and defendant had bumped shoulders. Goodwin looked at Jones and said that defendant had stabbed him. Defendant rode away on his bicycle.

Defendant testified he went to Jones's mother's house. She wasn't there, so he thought she might be next door with Goodwin. While he was talking to Goodwin, Jones approached. Defendant told Jones he wanted to get his clothes and his father's toolbox from her house. Jones said, "yes," and to give her a few minutes. Defendant rode off on his bicycle while Jones was still talking to Goodwin.

Defendant arrived at Jones's house ahead of Jones or Goodwin. Goodwin came up and told defendant to stay away from her house. Defendant retorted that he simply wanted to get his property. Defendant and Jones started arguing. He asked for his clothes and the toolbox, and they argued over that. Jones brought defendant's clothes in a plastic grocery bag. Defendant put the bag on the handlebars of his bicycle Jones did not want to return the toolbox, however, because she was still using it. Defendant argued that his father needed the toolbox, and defendant did not want to come back later to get it. Jones retrieved the toolbox from inside the house, and set the toolbox on the porch. Defendant went to pick up the toolbox, and Jones swung at him with a broom.

Defendant carried the toolbox and set it down by his bicycle. Then Goodwin hit defendant. Defendant saw that Goodwin was still coming at him, so he grabbed his knife, which was sticking out of the top of his clothes bag. He thought Goodwin was going to hit him again, and he flinched and stabbed Goodwin.

Defendant testified he was afraid when Goodwin hit him, and he grabbed the knife to protect himself. He weighed only 110 pounds, and Goodwin weighed 185 pounds. He had seen Goodwin working out on the punching bag, and had seen him practicing spin-kicks and punches. Goodwin had bragged about being a martial arts expert. When Jones stopped dating defendant and started dating Goodwin, Goodwin had once told defendant, "When I catch you and no one's around, I'm going to kill you."

After the stabbing, defendant rode away on his bicycle. Defendant hid the bicycle, the toolbox and the knife in some bushes and called his father to come pick him up. Police intercepted defendant when he was flagging down his father's van.

The Riverside County District Attorney charged defendant with one count of attempted murder (Pen. Code, §§ 187, 664}, with allegations that he used a deadly weapon (Pen. Code, § 12022, subd. (b)), and inflicted great bodily injury on Goodwin (Pen. Code, § 12022.7, subd. (a)). Defendant pleaded not guilty and denied the allegations.

The case proceeded to jury trial on the attempted murder charge. Defendant moved for acquittal on the sole count of the information at the close of the prosecution's case (Pen. Code, § 1118.1). The trial court granted the motion, but allowed the prosecutor to file an amended information, charging defendant with one count of assault with a deadly weapon (ADW) (Pen. Code, § 245, subd. (a)(1)). The court dismissed the attempted murder charge.

The jury returned a guilty verdict on the ADW charge, and the jury found true the use allegation and the great bodily injury allegation.

The court sentenced defendant to the middle term of three years for the ADW conviction, plus three years for the great bodily injury enhancement. The court stayed sentence on the weapon use enhancement.

Defendant now appeals.

DISCUSSION

I. Defendant's Conviction Must Be Reversed for

Violation of His Fifth Amendment Privilege

A. Background Facts and Procedure

At the time the instant charge was tried, defendant had suffered one misdemeanor conviction for petty theft, for shoplifting. He was charged, but had not yet been tried, with misdemeanor offenses of petty theft with a prior, and burglary. Both charges apparently arose from a single new shoplifting incident.

Before trial, the prosecutor here proposed to impeach defendant both with his misdemeanor conviction, and with his not-yet-tried misdemeanor conduct. The court ruled that defendant retained his Fifth Amendment privilege against self-incrimination in the instant trial as to the pending misdemeanor charges and, unless immunity were granted, would prevent the prosecutor from questioning defendant about that conduct if he testified in the present trial. The prosecutor then applied to the court to grant defendant "transactional immunity" in the pending misdemeanor case, for the avowed purpose of taking away defendant's right to remain silent about the pending misdemeanor charges. The court "f[ound] that the People ha[d] given the defendant transactional immunity.[1] The Court f[ound] that the People have the authority to do that. The Court further f[ound] that the defendant no longer ha[d], therefore, then, a Fifth Amendment privilege as to those pending charges in this case. Should he take the stand, the People would be allowed to ask him about that. . . ."

When defendant took the stand in his own behalf, defense counsel attempted to take the sting out of the revelations by asking defendant on direct examination about his misdemeanor shoplifting conviction and the "immunized" new shoplifting offense.

On cross-examination, the prosecutor asked defendant whether he had taken the items, both as to his prior misdemeanor conviction and as to his pending misdemeanor charges, knowing that it was wrong to steal. The prosecutor emphasized this admission in closing argument: ". . . Mr. Matz, to his credit, admitted that he knew it was wrong to do those things when he did [them] . . . . But what that shows is a willingness to do wrong things, to do bad acts, to do something that is wrong. [¶] And that, for whatever it's worth, whatever weight you give it, could be indicative on his willingness not to be truthful when he testifies to you . . . ."

Identity was not in issue, and defendant did not dispute using the knife. The critical issue in the case was credibility: What was defendant's intent when he stabbed Goodwin? As the prosecutor put it, "the question here is, . . . -- was the defendant untruthful in his statement?" The prosecutor emphasized that "the only person who tells us anything different [from the victim's evidence] is the defendant," and that "the defendant [is the one] who in this case . . . has the greatest bias not to be truthful . . . ."

The jury discredited defendant's self-defense claim, found defendant guilty of ADW, and found the use and great bodily injury enhancements true.

B. Immunity Is a Statutory Substitute for, and Must Provide Protection Coextensive With that Afforded by, the Constitutional Privilege

The Fifth Amendment to the United States Constitution provides a privilege against self-incrimination: "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The California Constitution provides a similar privilege: "Persons may not . . . be compelled in a criminal cause to be a witness against themselves . . . ." (Cal. Const., art. I, § 15.)

The privilege against self-incrimination has historical roots which predate its incorporation into the Constitution. "'The maxim, "Nemo tenetur seipsum accusare," [No one is bound to accuse himself] had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the case with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to brow-beat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly imbedded in English, as well as in American, jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.' (Brown v. Walker (1896) 161 U.S. 591, 596-597 [40 L.Ed. 819, 820-821, 16 S.Ct. 644].)" (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 422.) 2

The principles or theories underlying the privilege have been variously stated, but among the most enduring notions are that the privilege is necessary (1) to achieve a fair balance between the power of the state and the individual, (2) to accord due respect "to the dignity and integrity of its citizens" (Miranda v. Arizona (1966) 384 U.S. 436, 460 [86 S.Ct. 1602, 16 L.Ed.2d 694, 715, 10 A.L.R.3d 974]), and (3) "for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' United States v. Gunewald, 233 F.2d 556, 581-582 (Frank, J., dissenting), rev'd 353 U.S. 391 . . . ." (Murphy v. Waterfront Commission of New York (1964) 378 U.S. 52, 55 [84 S.Ct. 1594, 12 L.Ed.2d 678, 681-682], overruled in part in United States v. Balsys (1998) ___ U.S. ___ [118 S.Ct. 2218, 2230, 141 L.Ed.2d 575, 594] [risk of use of immunized information for prosecution in a foreign jurisdiction does not contravene Fifth Amendment].)

Notably, the prevalent theories underpinning the privilege are not based on the concept of reliability: Evidence coerced or compelled in violation of the constitutional privilege is excluded notwithstanding or, perhaps more correctly, irrespective of its reliability. (Allen v. Illinois (1986) 478 U.S. 364, 374 [106 S.Ct. 2988, 2995, 92 L.Ed.2d 296] [the privilege against self-incrimination enjoined by the Fifth Amendment is not designed to enhance the reliability of the fact-finding determination; it stands in the Constitution for entirely independent reasons]; Rogers v. Richmond (1961) 365 U.S. 534, 540-541, [81 S.Ct. 735, 739, 5 L.Ed.2d 760] [involuntary confessions excluded "not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system"].)

"In both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U.S. 441, 445 n. 13, 446 n. 14, 92 S.Ct. 1653, [1656 n. 13, 1657 n. 14], 32 L.Ed.2d 212." (New Jersey v. Portash (1979) 440 U.S. 450, 456 [99 S.Ct. 1292, 59 L.Ed.2d 501, 508].) The immunity statutes attempted to seek a "rational accommodation" between the fundamental principles underlying the privilege and the competing principle that citizens generally have a duty, which government may legitimately enforce, to testify. (Kastigar v. United States, supra, 406 U.S. 441, 446 [92 S.Ct. 1653, 32 L.Ed.2d 212, 218].) 3

Counselman v. Hitchcock (1892) 142 U.S. 547 [12 S.Ct. 195, 35 L.Ed. 1110] was the first case in which the United States Supreme Court considered the constitutionality of an immunity statute. Counselman was called before the grand jury, was sworn, and testified. He declined to answer certain of the questions, claiming the privilege against self-incrimination. For this refusal, he was held in contempt. The United States Supreme Court held that the claim of privilege was justified. In striking the balance, or determining the scope of the "rational accommodation," between the constitutional privilege and the immunity statute, the court first determined that the constitutional grant of privilege applied to more than mere testimony in the witness's own criminal case. The privilege applied alike to any statement that may tend to incriminate, even in proceedings other than a criminal prosecution against the witness.

Moreover, the court held that the federal immunity statute, which provided immunity only against direct use of the testimony in a criminal prosecution, but not against derivative use, could not be applied in place of the privilege. Counselman thus established the basic rule that any immunity granted must be coextensive with the scope of the privilege. "[N]o statute can supplant a constitutional privilege, 'at least unless it is so broad as to have the same extent in scope and effect.'" (People v. Gwillim (1990) 223 Cal.App.3d 1254, 1265-1266, quoting Counselman v. Hitchcock, supra, 142 U.S. 547, 585 [12 S.Ct. 195, 35 L.Ed. 1110, 1122].)

"It has never been questioned that, where legislation grants immunity to witnesses in return for testimony, such testimony ceases to be self-incriminating. But in order that the immunity from prosecution be a substitute for the constitutional privilege it must, in addition to eradicating the self-incriminating character of the testimony to be adduced, also exonerate the witness from prosecution for the offense thereby disclosed. The leading case to that effect, followed by the weight of authority in this country, holds that the immunity offered must be coextensive with and a full substitution for the constitutional prohibition. (Counselman v. Hitchcock, supra, followed in In re Doyle [(1894) 104 Cal. 524], supra, Ex parte Cohen [(1931) 257 N.Y. 244 [177 N.E. 489]], supra, and numerous other cases.)" (In re Critchlow (1938) 11 Cal.2d 751, 756, italics added.)

In Counselman, and for some time after Counselman was decided, complete immunity from any criminal prosecution, now called "transactional" immunity, was thought to accord with the appropriate scope of the privilege. Later jurisprudence analyzed the scope of the Fifth Amendment privilege somewhat differently.

By way of background, it is worth noting that the "privilege against self-incrimination" embraces at least two separate concepts. First, there is the privilege of the accused in a criminal proceeding not to testify at all, and to make the government bear the complete burden of proving the charges. Second, there is the privilege of a person, as a witness in any proceeding, civil or criminal, to refuse to answer particular questions the answers to which may tend to incriminate him or her. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137.)

The logical corollary to the testimonial privilege of the accused, not to testify at all in his or her own criminal trial, is the truism that the Fifth Amendment does not prevent the accused from being prosecuted; that is, it does not prevent the criminal trial from taking place. Rather, it protects the accused from the state's exertion of power to compel the accused to supply the proof from his or her own mouth. (People v. Badgett (1995) 10 Cal.4th 330, 346.) The Fifth Amendment privilege is a personal privilege. It resides with the person and not abstractly in the information which the person knows. Thus, a party is privileged from being required personally to produce the evidence, but the privilege inhering in the person does not proscribe producing the same evidence by other means or through other sources. (Couch v. United States (1973) 409 U.S. 322, 327 [93 S.Ct. 611, 34 L.Ed.2d 548, 553-554].) Consequently, later cases recognized that full "transactional" immunity, or complete immunity from prosecution was not required in order to match the scope of the privilege's protection.

Many years after Counselman, Congress reexamined the matter and enacted a different immunity statute, which afforded immunity from direct use of the defendant's immunized statements, and indirect use of the compelled evidence to derive other testimony or to develop other leads or evidence in the case. The immunity statute did not, however, require full immunity from prosecution. (18 U.S.C. § 6002.) In Kastigar v. United States, supra, 406 U.S. 441 [92 S.Ct. 1653, 32 L.Ed.2d 212], the United States Supreme Court sanctioned the new immunity statute. "The statute's explicit proscription of the use in any criminal case of 'testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)' is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of "penalties affixed to . . . criminal acts."' Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." (Kastigar v. United States, supra, 406 U.S. 441, 453 [92 S.Ct. 1653, 32 L.Ed.2d 212, 222], italics added, italics in original & fn. omitted.)

The scope of immunity sanctioned in Kastigar is generally termed "use" immunity, but the key point is that it still is a substitute for the privilege, and it may overcome and replace the constitutional privilege only if, after the immunity is granted, the immunity leaves the witness in the same relative position, vis-à-vis prosecution or infliction of criminal penalties, as if the witness had simply claimed the privilege. (Kastigar v. United States, supra, 406 U.S. 441, 458-459 [92 S.Ct. 1653, 32 L.Ed.2d 212, 224-226]; Murphy v. Waterfront Commission of New York, supra, 378 U.S. 52, 79 [84 S.Ct. 1594, 12 L.Ed.2d 678, 695].) The immunity must "give protection equivalent to that which attends the refusal to testify about matters which incriminate." (People v. Campbell (1982) 137 Cal.App.3d 867, 873.)

C. A Defendant Who Testifies Waives the Privilege, Except as to Matters Going Merely to Credibility

The general rule is that, if a defendant takes the stand and testifies in his or her own behalf, the defendant has waived the accused's privilege against self-incrimination. (Johnson v. United States (1943) 318 U.S. 189 [ 63 S.Ct. 549, 87 L.Ed. 704] [defendant who takes the stand waives the Fifth Amendment privilege]; People v. Mayberry (1975) 15 Cal.3d 143, 160 [defendant who takes the stand waives the state constitutional privilege].)

The scope of that waiver has been a matter of some debate: "'The extent to which a person waives his privilege by testifying is the subject of conflicting decisions.' Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 42 (1949). One view commonly shared is that a defendant who takes the stand waives his privilege as to every fact except facts merely affecting credibility. This is the view favored by Wigmore. Federal decisions make the waiver less extensive and 'imply that the accused and every other witness is subject to cross-examination upon all matters relevant to the content of his direct examination.' Id. at 42-43. At the opposite extreme from Wigmore, there is the English rule that the privilege may be claimed at any moment; virtually no waiver is conceded. The United States Supreme Court has not expressly held any single view to be constitutionally required in all cases. By the time a defendant charged with a federal offense was given the capacity to testify in his own behalf, the federal courts had adopted a restrictive rule of cross-examination. Consequently, the question of the extent of the waiver by testifying rarely arose because the rule limiting the scope of permissible cross-examination would bar questions about matters not brought out on direct [examination,] without reference to whether the defendant had waived his privilege against self-incrimination by testifying." (Neely v. State (1980) 97 Wis.2d 38, 44-45 [292 N.W.2d 859, 863-864], fns. omitted.)

Several California cases have espoused the "scope of cross-examination" rule, as is apparently the federal practice. (See, e.g., People v. Saddler (1979) 24 Cal.3d 671, 679 [defendant who testifies waives the privilege "to the extent of the scope of relevant cross-examination"]; see also People v. Eaton (1969) 275 Cal.App.2d 584, 590 ["where a defendant takes the stand and testifies, he thereby waives his Fifth Amendment privilege only to the extent of the permissible scope of cross-examination" (italics original)]; accord People v. Crudgington (1979) 88 Cal.App.3d 295, 302; People v. Tealer (1975) 48 Cal.App.3d 598, 604.)

Naturally, the testifying defendant "cannot artificially limit that scope by limiting his direct testimony (People v. Teshara (1904) 141 Cal. 633, 638 [75 P. 338] . . . ." (People v. Lynn (1971) 16 Cal.App.3d 259, 271), and if the import of the defendant's testimony is generally to deny commission of the charged crime, "'. . . the permissible scope of cross-examination is very wide.' [Citations.]" (People v. Saddler, supra, 24 Cal.3d 671, 679)

"Historical analysis furnishes no useful clues as to which view [of the scope of waiver of the privilege by testifying: e.g., the Wigmore school that the testifying defendant waives the privilege as to every relevant fact except those merely affecting credibility, or the view that the waiver is strictly limited to matters covered on direct examination] is constitutionally correct but does explain why such a seemingly basic question is, as yet, unresolved. The privilege against self-incrimination developed at a time when a defendant was not permitted to testify in his own behalf. By the time he was granted this right in federal cases in 1878, the federal courts had adopted [the Justice Story] restrictive rule of cross-examination. . . . Consequently, the question of privilege rarely arose since the rule regarding the scope of permissible cross-examination would operate to bar questions about matters not brought out on direct without reference to whether defendant had waived his privilege by testifying." (State v. Dace (S.D. 1983) 333 N.W.2d 812, 820, fn. omitted.)

In jurisdictions recognizing "wide-open" cross-examination (see, Neely v. State, supra, 97 Wis.2d 38, [292 N.W.2d 859]), the Wigmore view prevails: An accused's "voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all." (8 Wigmore, Evidence, supra, § 2276, p. 459, first italics original, second italics added.) "[T]he reasons advanced for the privilege . . . are decisively less persuasive when applied to disclosures requested [i.e., cross-examination] after the accused has voluntarily taken the stand." (Id. at p. 462.) Wigmore's view, therefore, is that the accused who testifies waives the privilege as to "all matters relevant to the issue, meaning thereby to exclude 'collateral' matters -- i.e., facts merely affecting credibility . . . ." (Id. at p. 465, original italics.)

Of course, a defendant who testifies may be cross-examined and impeached with evidence, such as prior felony convictions, "merely affecting credibility," if that evidence is not within the privilege: i.e., if it does not "incriminate" the defendant in other punishable crimes. Use of prior felony convictions "merely" for impeachment does not implicate the privilege against self-incrimination. (McGautha v. California (1971) 402 U.S. 183, 215 [91 S.Ct. 1454, 28 L.Ed.2d 711, 731] [federal privilege]; People v. Collins (1986) 42 Cal.3d 378, 387-388 [state privilege].) Once a defendant has been convicted, he or she can no longer be "incriminated," and the privilege no longer applies. (Reina v. United States (1960) 364 U.S. 507, 513 [81 S.Ct. 260, 264, 5 L.Ed.2d 249]; U. S. v. Mitchell (3d Cir. 1997) 122 F.3d 185, 189.) 4

Aside from other-crimes evidence which relates "merely" to matters of credibility, evidence of other offenses may be made admissible, and the defendant's election to testify will act as a waiver of the privilege, if there is a necessary or logical connection between the charged offense and the other evidence showing criminal activity. The accused who testifies may be cross-examined and impeached with that matter, even if it tends to incriminate the accused, because the accused has opened the door and made the interconnected matter relevant by his or her direct examination. (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 760-761 [defendant's testimony was essentially a denial of guilt as to all charged crimes of kidnapping, robbery and sexual offenses, and put his identity in issue as to each. Cross-examination on uncharged similar offenses showing distinctive marks of a common plan or scheme was proper, even though the defendant did not testify about these uncharged incidents on direct examination]; People v. Harris (1971) 18 Cal.App.3d 1, 8 [trial court properly ruled that, if the defendant testified and denied committing robbery of money orders, he would be subject to cross-examination on his connection to attempted forgery of some of the stolen money orders. Even if cross-examination would tend to establish guilt of another offense, the conduct was interconnected with the charged offense. "Under the judge's ruling defendant would still have had the right to refuse to answer any irrelevant questions" (italics added)]; People v. Lynn (1971) 16 Cal.App.3d 259, 271-272 [trial court properly overruled claim of privilege by defendants who testified, denying intent to escape during a fracas with officers. One officer was killed in the melee. Court of Appeal ruled scope of cross-examination implicated by denial, on direct examination, of the charged offense, included series of events showing an ongoing plan to escape, including a prior escape, burglaries, robbery, kidnapping and theft of an automobile committed in carrying out the prior escape]; see also People v. Ing (1967) 65 Cal.2d 603, 610.)

The decision of a defendant to testify does not, however, result in a waiver of the privilege as to every conceivable matter which might incriminate him or her. The defendant's testimony does not operate as an invitation to the prosecution to "'". . . question[] [the defendant] upon the case generally, and in effect mak[e] [the defendant] its own witness."' [Citations.]" (People v. Fauber (1992) 2 Cal.4th 792, 859.)

Where the prosecutor seeks to cross-examine the accused as to uncharged conduct which may tend to show the commission of another criminal offense, and that conduct is not related to the accused's guilt or innocence of the presently charged and tried offense, but is sought to be introduced "merely" to affect the accused's credibility, the accused retains and may assert the privilege against self-incrimination. Although we have found no California or United States Supreme Court authority directly on point, our holding is supported under either federal practice, which employs a limited scope of cross-examination, or under the "wide-open" cross-examination school of thought favored by Professor Wigmore.

The Wisconsin Supreme Court both recognized that a limited cross-examination principle applied to the federal, "relevant cross-examination," system, and implicitly accepted a similar principle respecting its own "wide-open" cross-examination system. "[I]n Johnson v. United States, 318 U.S. 189, 195-96, 63 S.Ct. 549, 552-53, 87 L.Ed. 704 (1943), . . . the [United States Supreme] Court reiterated the test of relevancy. In Johnson, the defendant, a political leader in New Jersey, was charged with [income tax evasion] for the years 1935, 1936, and 1937. . . . On direct examination, the defendant admitted receiving weekly payments [from an illegal source] up to November, 1937. On cross-examination he denied receiving payments during November and December, 1937. He was then asked if he received any money in 1938. . . . [T]he defendant admitted he had [received payments in 1938, but declined to name the source of the funds, claiming the privilege against self-incrimination. The United States Supreme Court held that] . . . ‘[t]he cross-examination did not run afoul of the rule which prohibits inquiry into a collateral crime unconnected with the offense charged. [Italics added.] Boyd v. United States, 142 U.S. 450 (, 12 S.Ct. 292, 35 L.Ed. 1077.) Inquiry into [the defendant's] income for 1938 was relevant to the issue in the case. . . . The amount and source of the 1938 income . . . were relevant to show the continuous nature of the transactions [i.e., to show the illegal source of payments was not in fact interrupted in November and December of 1937].’" (Neely v. State, supra, 97 Wis.2d 38, 45-46 [292 N.W.2d 859, 864-865].)

In New York, the courts have expressly held that a defendant does not, by testifying, automatically and generally waive the privilege against self-incrimination with respect to questions concerning pending unrelated criminal charges. (People v. Smith (1996) 87 N.Y.2d 715 [665 N.E.2d 138, 642 N.Y.S.2d 568]; People v. Betts (1987) 70 N.Y.2d 289 [514 N.E.2d 865, 520 N.Y.S.2d 370]; People v. Bennett (1992) 79 N.Y.2d 464 [593 N.E.2d 279, 583 N.Y.S.2d 825].)

We have examined the reasons underlying the New York rule and find them persuasive: Betts, the seminal New York case on the point, recognized that allowing the prosecution to impeach a defendant testifying in his or her own behalf at trial, with unrelated pending charges "unduly prejudices defendant [both] by its potential impact on the pending criminal charge and in its actual effect on the charge being tried. It exerts an undeniable chilling effect upon a real 'choice' whether to testify in one's own behalf." (People v. Betts, supra, 70 N.Y.2d 289, 292 [514 N.E.2d 865, 866, 520 N.Y.S.2d 370].) "Allowing a defendant-witness' credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant's right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.

"The law unquestionably gives an accused a real choice about testifying but 'distortion introduced by the accused's testimony can be fully corrected only if matters affecting his credibility can be fully probed' (8 Wigmore, Evidence § 2276[2], at 463-464 [McNaughton rev. 1961]). Thus, the general rule provides the People a corresponding opportunity to cross-examine, relevantly and appropriately, and this extends to many areas and subjects. We conclude nevertheless that it does not counterbalance the accused's constitutional right to refrain from testifying concerning pending collateral criminal charges because '[w]hile an accused, unlike an ordinary witness, has an option whether to testify at all, exacting such a [sweeping] waiver as the price of taking the stand leaves little of the right to testify on one's own behalf' (McCormick, Evidence § 42, at 92 [3d ed. 1984]). The imbalance in that equation is self-evident.

"The policy of protecting the defendant's opportunity to testify, while allowing the prosecution a balanced evidentiary response, is well served by the rule that the defendant's choice to testify in the case on trial does not, by itself, effect a waiver of the privilege against self-incrimination as to pending unrelated charges. This rule will not, on the other hand, preclude prosecutors from inquiry into pending criminal charges if a defendant, in taking the stand, makes assertions that open the door and render those charges relevant for contradiction and response." (People v. Betts, supra, 70 N.Y.2d. 289, 295 [514 N.E.2d 865, 520 N.Y.S.2d 370].)

The trial court here implicitly recognized the same principle, ruling that defendant could not be impeached with irrelevant misdemeanor accusations unless he were granted immunity. The prosecutor also recognized as much and granted immunity to defendant. This then brings us to the immunity question: Was the immunity offered defendant here "coextensive" with the scope of the privilege he retained, and did it afford him protection commensurate with the privilege it replaced?

D. The Immunity Offered Defendant Was Not Commensurate With His Privilege Not to Incriminate Himself With Respect to the Collateral Pending Charges

In California, immunity in exchange for compelled testimony is provided by Penal Code section 1324. Penal Code section 1324 formerly provided only for full transactional immunity, or freedom from prosecution, in exchange for compelled testimony. (People v. Campbell (1982) 137 Cal.App.3d 867, 874.) 5 Penal Code section 1324 was amended in 1996, however, to permit the prosecutor to offer the more limited use immunity. (See Stats.1996, ch. 302, § 1, p. 1893.) Penal Code section 1324 now provides that, if a person is granted immunity and compelled to answer a question, "After complying, and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him or her, no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case. But he or she may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. Nothing in this section shall prohibit the district attorney or any other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give testimony or produce evidence." (Italics added.) The new version of the immunity statute became effective January 1, 1997. Defendant here was offered immunity and compelled to testify in April of 1997, under the new "use immunity" statute.

The Attorney General argues that, because the United States Supreme Court has held "use" immunity is "coextensive" with the privilege against self-incrimination, granting such use immunity to defendant here was ipso facto a proper substitute for the privilege. Once defendant was granted use immunity, 6 his privilege was supplanted and he could be compelled to testify in the present case about the pending charges. The Attorney General's facile argument does not withstand analysis.

Immunity is a creature of statute, and we are therefore bound to look first to the words of the statute to determine what the statute accomplishes. The immunity statute applies to compel answers in those cases in which the witness would otherwise have been privileged not to answer. Defendant here, as the court and parties recognized below, and as we have determined, was privileged under the Constitution not to answer questions about the unrelated pending misdemeanor theft charges. If, but for the immunity, the witness would have been privileged not to answer, Penal Code section 1324 states that neither the compelled testimony or other information, nor any evidence derived directly or indirectly from the compelled testimony or information, "may be used against the witness in any criminal case." (Italics added.)

The prosecutor here did, however, exactly what the statute itself prohibits. Defendant was granted "immunity" precisely for the purpose of "us[ing]" his compelled testimony "against" defendant "in [a] criminal case": i.e., the present trial. Defendant was not truly, therefore, afforded proper immunity under the statute.

Even more importantly, the scope of immunity defendant was afforded did not provide him protection commensurate with the constitutional privilege. The United States Supreme Court in Kastigar v. United States, supra, 406 U.S. 441 [92 S.Ct. 1653, 32 L.Ed.2d 212], held that the constitutional privilege did not prevent an accused from being prosecuted, but rather sought to ensure "protection against being 'forced to give testimony leading to the infliction of "penalties affixed to . . . criminal acts."' Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." (Id. at p. 453, italics added, original italics & fn. omitted.)

Kastigar-style "use" immunity may be coextensive with the protections afforded by the privilege where the immunized witness is being examined as a witness, and not as an accused. For example, a witness who is not a party to a criminal case may be given immunity in exchange for testimony against the accused defendants in that case. As may be expected, one of the prime reasons for the immunity statutes is that many offenses may be unprosecutable at all unless the government may, through granting immunity to some participants, compel production of evidence against others. (See, e.g., Kastigar v. United States, supra, 406 U.S. 441, 444, 446 [92 S.Ct. 1653, 1656, 32 L.Ed.2d 212] [the government must have "essential" power to compel testimony, for often the only persons who can give useful testimony are those who are implicated in the offense]; Pillsbury Co. v. Conboy (1983) 459 U.S. 248 [103 S.Ct. 608, 612, 74 L.Ed.2d 430] [a "major purpose" of the federal use immunity statute was "‘to provide the criminal justice system with the necessary legal tools to . . . strengthe[n] the evidence gathering process and insur[e] that the evidence will then be available and admissible at trial’"].) 7

Where an immunized witness is one of several defendants being tried together, the usual reason for granting immunity is, again, to secure evidence otherwise unavailable, which will enable the government to prosecute the codefendants. The immunized defendant's own testimony is not, and cannot be, used in his own case. Under these or similar circumstances, the immunity provides protection to the immunized witness as a witness; the witness's testimony cannot be used in the proceedings in which he or she testifies to inflict criminal penalties on him or her, as he or she is not the one charged, and the evidence is being used against others, not against him or her. The Kastigar-model "use" immunity also protects the witness in his or her capacity as an accused, for the testimony cannot be used directly or indirectly to establish the immunized defendant's own guilt or innocence of the charges brought directly against him or her.

The situation here is atypical. The immunized defendant here, as in the common situation, has pending criminal charges, as to which immunity could properly be granted. The prosecutor, indeed, promised not to use defendant's evidence, either directly or indirectly, against defendant in his pending unrelated case. The grant of "immunity" was not commensurate with the scope of defendant's privilege, however, with respect to the proceedings in which he was to testify. Unlike the typical case, defendant's "immunized" testimony was not sought against others. He was not to be a witness primarily as to the criminal conduct of others, and only incidentally as to himself. Rather, his testimony as witness was sought in a proceeding exclusively against himself, and expressly in order to be used against himself. The very reason for granting the "immunity" was to compel defendant to impeach his own credibility, out of his own mouth, when the sole object of the proceedings in which he was forced to testify was to impose criminal penalties upon him, and when the critical issue in the trial was credibility.

In point of fact, although immunity is supposed to be a substitute for the privilege, a kind of exchange, the prosecution here was required to "exchange" nothing. The deputy district attorney trying defendant's present case promised not to use defendant's testimony, directly or indirectly, in the pending misdemeanor case. Indeed, he did not intend even to mention to the other deputy the fact that defendant had testified in the case at trial. The deputy who eventually would try the pending misdemeanors evidently had all the independent proof needed of that offense, and would thus have no difficulty proving that none of the evidence used was derived from defendant's testimony here. The "immunity" as to the pending misdemeanor offenses therefore effectively cost the People nothing. Defendant also got nothing in the way of "immunity" in the case being currently tried. He was forced to testify about the pending misdemeanor offense, with no other object than to damage his own credibility, even though he would have otherwise been privileged not to answer such peripheral credibility questions.

In short, although defendant was granted the "immunity" available under the California statute, that brand of immunity did not provide him protection equivalent to that afforded by the privilege, because it did not provide any substitute for his privilege in the currently tried case. It forced him to do that which the constitution forbids: it forced him to be a witness against himself in a criminal case.

Kastigar permits immunity to substitute for the privilege on condition that the prosecutor may not "us[e] the compelled testimony in any respect." (Kastigar v. United States, supra, 406 U.S. 441, 453 [92 S.Ct. 1653, 32 L.Ed.2d 212, 222, italics omitted].) Here, the prosecutor did "us[e] the compelled testimony" against defendant. Immunity must "insure[] that the testimony cannot lead to the infliction of criminal penalties on the witness." Here, the only purpose of compelling defendant to testify was to aid in inflicting criminal penalties upon him. "What Kastigar proscribes is 'any use, direct or indirect,' of the immunized statement." (People v. Gwillim, supra, 223 Cal.App.3d 1254, 1271.) Here, defendant's "immunized" statement was used directly against him.

Because the "immunity" purportedly granted to defendant did not afford him protection commensurate with that afforded by his privilege against self-incrimination, the trial court improperly required defendant to testify as to his pending misdemeanor charges in the case below.

We conclude that the violation of defendant's constitutional privilege requires reversal, under any standard of review.

United States Supreme Court authority indicates that the direct violation of the privilege against self-incrimination by compelled testimony is automatically reversible. The fundamental policy underlying the privilege is to achieve a fair balance of power between the individual and the state. "Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant's will; the witness is told to talk or face the government's coercive sanctions, notably, a conviction for contempt. The information given in response to a [purported] grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris [Harris v. New York (1971) 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1]] and Hass [Oregon v. Hass (1975) 420 U.S. 714 [95 S.Ct. 1215, 43 L.Ed.2d 570]] [both cases involving admission of statements taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974], to impeach a defendant's testimony at trial] when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible." (New Jersey v. Portash, supra, 440 U.S. 450, 459 [99 S.Ct. 1292, 59 L.Ed.2d 501, 510].)

Even if we must review the error for prejudice, we conclude the error was prejudicial. Because the direct admission of coerced testimony constitutes federal constitutional error, the prosecution bears the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705]; People v. Bolton (1979) 23 Cal.3d 208, 214.) The prosecution cannot meet that burden here, where the crux of the entire case was defendant's credibility. Even under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836), it is reasonably probable that, in the absence of the error, the verdict would have been different.

For the sake of clarity, we add a few final comments. We believe that the circumstances here are unusual, and that we make no sweeping pronouncements in reaching the result we have reached. This is so, first, because the typical case in which use immunity is granted does not "use" the immunized testimony against the immunized witness at all. In the typical case, it is true both that (a) the compelled testimony is not used against the witness when he or she is testifying, because the testimony is being admitted against other parties, and (b) the compelled testimony is not used against the witness as a defendant with respect to pending criminal charges which are the subject of the compelled testimony. In these circumstances, Penal Code section 1324 fully satisfies the constitutional guaranties, as explained in Kastigar v. United States, supra, 406 U.S. 441 [92 S.Ct. 1653, 32 L.Ed.2d 212].

In the second place, the rule we state here is quite narrow: the privilege does not prevent a testifying defendant from being cross-examined about all matters which "merely affect credibility." Rather, the proscription is only against cross-examining a defendant, merely for the purpose of attacking credibility, on other criminal conduct which could still be subject to punishment. Past criminal acts, for example, which have resulted in a final conviction, or as to which the statute of limitations has run, and the like, are fair cross-examination material. Moreover, if the defendant's direct testimony makes other uncharged criminal conduct relevant to guilt or innocence of the currently tried offense, such matters also may be fairly cross-examined.

Third, the prohibition against producing a certain, limited kind of credibility-impeaching evidence from the defendant himself or herself does not prohibit introduction of the same or similar evidence, for purposes of impeachment, from independent sources. Thus, for example, the prosecutor here might have been able to impeach defendant's credibility by using other witnesses to prove the impeaching conduct, i.e., misdemeanor conduct involving moral turpitude.

Of course, such evidence is subject to exclusion if its introduction is more prejudicial than probative, or if it will consume undue time or if it may confuse the jury. (Evid. Code, § 352.)

When the California Supreme Court held, in People v. Wheeler (1992) 4 Cal.4th 284, 295, 296-297, that evidence of criminal conduct other than past felony convictions may be allowed to impeach a witness's credibility, it also held that the fact of, e.g., a prior misdemeanor conviction, standing alone, remains subject to a hearsay objection. Impeachment with criminal conduct amounting to a misdemeanor therefore must be proven with evidence of the relevant acts, and not by the mere record of conviction. Of course, if unadjudicated acts are the subject of the impeachment, the hearsay problem will not be present, as there will be no attempt to prove the matter with a record of conviction. But, the Supreme Court, cautioned, "impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value," (id. at pp. 296-297) so as "to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." 8 (Id. at p. 296.)

Because the trial court here erroneously believed the "immunity" granted to defendant was an appropriate substitute, in this trial, for his privilege against self-incrimination, the impeaching evidence was conveniently brought in by a witness, defendant himself, who was already testifying before the court. Had the prosecutor been required properly to introduce the evidence through other witnesses, the trial court would have been alerted to the necessity to determine whether such evidence was necessary, or instead was just so much "nitpicking" over a collateral credibility issue.

In conclusion, we hold that an accused does not, by taking the stand in a current trial, automatically waive the privilege against self-incrimination as to collateral, uncharged offenses, which could be admitted solely for impeachment. If the defendant's direct testimony makes an uncharged offense relevant to guilt or innocence of the currently tried offense, the waiver of the accused's privilege also waives the privilege to the extent of cross-examination on such matters. "Use" immunity which provides that the government may not use the immunized testimony against the defendant in the pending, unrelated case, but which does not prohibit use of the immunized testimony against the defendant in the current trial, is not coextensive with the privilege, and thus may not supplant the privilege against self-incrimination. Because defendant here was compelled to testify against himself in the current trial, his conviction must be reversed.

II. The Prosecutor's Argument Did Not Constitute Doyle 9 Error

Although we reverse defendant's conviction based upon violation of his Fifth Amendment privilege at trial, the reversal is not, of itself, a bar to retrial. Accordingly, some comments are necessary about his remaining assignments of error, which might arise upon retrial, or which might affect the court's jurisdiction to retry defendant.

A. Factual Background of Alleged Doyle Error

Police officers interviewed defendant after his arrest. Defendant initially agreed to waive his Miranda rights, 10 and talk to police. Defendant gave a statement that he was visiting a friend named Bobby, but could not give Bobby's last name or address. Defendant said that he got into a dispute with Bobby's girlfriend. Bobby became angry and hit defendant in the face. Defendant ran away. When officers started to ask further details about the incident, defendant invoked his right to silence and refused to talk further.

The prosecutor argued to the jury that, when defendant had waived his rights and agreed to speak to police, he did not tell the story he told at trial. He never said he feared for his life. He simply told police that Bobby had hit him, and defendant had run away.

B. The Prosecutor's Argument Was Proper

Defendant now urges that the prosecutor's argument was an improper comment upon his invocation of his right to silence, forbidden in Doyle v. Ohio, supra, 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91].

The argument was proper. The prosecutor did not comment upon defendant's silence. He commented, rather, on what defendant chose to say when he waived his right to silence. Where a defendant offers exculpatory testimony at trial, Doyle does not forbid impeaching him with inconsistent statements made after a waiver of Miranda rights. (Anderson v. Charles (1980) 447 U.S. 404, 408 [100 S.Ct. 2180, 65 L.Ed.2d 222, 226-227]; People v. Evans (1994) 25 Cal.App.4th 358, 369-370.) There was no Doyle error.

III. The Court Properly Allowed the Information to be Amended

A. Factual Background

At the close of the prosecution's case, defendant moved for acquittal under Penal Code section 1118.1, on the ground that the evidence adduced was insufficient to prove the charged offense of attempted murder. The court expressed concern that the evidence might not be sufficient to prove that charge, but suggested that, "[i]f the People want to allege it," the court would permit an amendment to conform to proof, to allege ADW. The People responded to the motion for acquittal, arguing the evidence was sufficient, but indicated that, if the court was inclined to grant the motion as to attempted murder, the People would seek to amend the information to charge ADW. The court then ruled on the motion for acquittal: "The 1118 motion -- .1 motion for acquittal as to Count I will be granted. However, the Court will allow the prosecution to file an amended Information alleging Count II as a 245(a)(1) with the enhancement." The deputy district attorney immediately presented such an amendment to the court. Defense counsel did not object to the amended information.

B. The Amendment Was Proper

Penal Code section 1009 provides that the district attorney may amend the information without leave of court at any time before the defendant enters a plea or before a demurrer is sustained. After a plea or demurrer, the prosecutor must apply for permission from the court to amend the pleading; the court has discretion to allow the information to be amended "for any defect or insufficiency, at any stage of the proceedings." (Pen. Code, § 1009.) The information may be amended only if the amendment charges an offense shown by the evidence taken at the preliminary hearing. The "focus of the trial court's exercise of discretion in ruling on a motion to amend should be directed primarily to determining whether, on the facts presented, the requested amendment would prejudice [the defendant's] substantial rights." (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 477.)

Defendant now contends that, because the trial court's oral pronouncement of its intent to grant the motion for acquittal momentarily preceded the submission of the amendment of the information, any amendment or attempt to prosecute him on the same underlying conduct was barred by the acquittal on count I.

We reject defendant's contention. In evaluating such matters, we "spurn a slavish adherence to formality and resort to common sense for the solution. While procedural exactness is to be admired, it is no longer considered an indispensable ingredient to effective judicial administration, and a court may look through form to substance if necessary to attain justice." (People v. Odom (1970) 3 Cal.App.3d 559, 565.) "it is absolutely clear that the trial judge intended to acquit appellant of the [attempted] murder charge only and that his error was procedural; the trial court could have reached the result desired if the district attorney had filed an amended information charging appellant with [attempted murder] and [ADW] in separate counts, and if the court had ordered a judgment of acquittal of the [attempted] murder count only." (Ibid.) It is also clear that defense counsel understood and acquiesced in the trial court's intent to acquit only as to the greater charge and not as to the proposed ADW amended charge. When the court asked if defense counsel had any objections, counsel did not demand a full acquittal on all charges. (See ibid.) "[B]oth sides knew and understood the true intent behind the trial court's ruling from the very beginning, completed the trial without objection and then stood silently by while the court submitted the cause to the jury on [the ADW charge]." (Id. at p. 566.) To allow defendant at this late date to argue that the sequence of actions resulted in a full acquittal would be to elevate form over substance and allow him to play fast and loose with the procedures to which he implicitly agreed.

IV. Other Issues

Defendant also complains on appeal that he was not allowed to testify whether Goodwin had told defendant about fights he had had. Because we have reversed the conviction on other grounds, we need not address such an evidentiary issue. Suffice to say, however, that defendant was permitted to testify generally that Goodwin was a violent person who was "always" getting into fights. Defendant does not indicate what other evidence about Goodwin's fights was excluded, which could have added to the evidence that defendant reasonably feared Goodwin.

Defendant also urges that the trial court improperly used an element of the ADW offense, use of a knife, to aggravate his sentence. Regardless of whatever remarks the court made about defendant's use of the knife, defendant's sentence was not aggravated. The court imposed the middle term, which is the default term and for which reasons need not be stated. The court also specifically found that none of the applicable circumstances were sufficiently significant to change the term from the middle term. The matter is moot, of course, as the sentence was vacated with the reversal of the judgment.

Defendant also claims, and the People concede, that a knife use enhancement under Penal Code section 12022, subdivision (b)(1), was improper because the use of the knife was an integral element of the ADW offense charged. (People v. McGee (1993) 15 Cal.App.4th 107, 117.) The knife use enhancement should be stricken upon retrial.

DISPOSITION

The judgment is reversed. Because the error requiring reversal did not derive from or result in a failure of proof, our disposition is not a bar to retrial of the case. The Penal Code section 12022, subdivision(b)(1) enhancement should be stricken from the information upon retrial.

CERTIFIED FOR PARTIAL PUBLICATION

/s/ Ward

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Gaut

J.

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and Procedural History, parts II, III and IV.

1 The court clerk recorded in the minutes that defendant had been given "transactual" immunity. The colloquy in the reporter's transcript makes clear, however, that the deputy district attorney was not offering defendant immunity from prosecution on the pending charges; rather, he acknowledged to the court that he would not be permitted to use either defendant's statements or any evidence derived from those statements, in the pending misdemeanor prosecution. Defendant was therefore afforded, not transactional immunity, but what is normally referred to as use immunity. (Kastigar v. United States (1972) 406 U.S. 441, 453 [92 S.Ct. 1653, 32 L.Ed.2d 212, 222].)

The deputy district attorney proposed to avoid direct or derivative use, in the pending case, of defendant's present testimony by the expedient of not mentioning the fact of defendant's testimony to the deputy trying the other case. The deputy district attorney noted the pending misdemeanor case was being tried in a different district, and stated, "I do not have any intention ever discussing that matter with whomever might subsequently handle the case. I don't have any intent to discuss with them any testimony that the defendant may give in regards to that . . . . [¶] . . . And it is my intent that the words he states from the stand will remain with me."

2 The "rise and fall of the oath ex-officio," which played a key role in the growth of the privilege against self-incrimination, is colorfully recounted in the dissenting opinion of Justice Carter in First Unitarian Church v. County of L. A. (1957) 48 Cal.2d 419, 451, 457. Justice Carter's position on the point at issue -- First Unitarian was a test oath case -- ultimately carried the day in the United States Supreme Court (see First Unitarian Church v. Los Angeles (1958) 357 U.S. 545 [78 S.Ct. 1350, 2 L.Ed.2d 1484]).

3 The development of a duty of witnesses to appear and testify has its own interesting history. Through the 1400's in England, what we commonly understand today as a witness in a jury trial, who appears to give evidence for consideration by the jury, did not exist. Such "witnesses" were originally viewed suspiciously, as meddlers. In the 1500's, the changing needs of civil juries caused, by statutory enactment, the creation of a process for compelling witnesses to attend a trial. As much as requiring the witness to attend, the purpose was to permit witnesses to attend, without fear of "maintenance" proceedings for improperly influencing the jury. With the right or freedom to attend and give evidence as a witness, gradually came the idea of a duty to testify. Finally, such a right and duty were generally recognized and applied in criminal cases, to the extent of permitting the defendant in a criminal case a process to compel witnesses to attend and give evidence for the defense. (8 Wigmore, Evidence (McNaughton rev. 1961) § 2190.)

4 Where the conviction is not yet final, however, under California law a witness may still assert the privilege as to the subject of that conviction, at least until sentencing, and while an appeal is pending or up until the time to appeal has expired, if not until the sentence has been completed. (People v. Fonseca (1995) 36 Cal.App.4th 631, 633-637; see also Brown v. Walker (1896) 161 U.S. 591, 603-604 [16 S.Ct. 644, 649, 40 L.Ed. 819] [a person cannot be a "witness" "against himself" where the acts about which the witness is called to testify are not punishable, such as where the acts do not constitute an offense; where the statute creating the offense has been repealed; where the witness has been tried for the offense and acquitted, or, if convicted, has satisfied the sentence of the law; or where the offense is barred by the statute of limitations, and there is no pending prosecution against the witness].)

5 Penal Code section 1324 formerly provided in pertinent part: "In any felony proceeding . . . if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and if the district attorney of the county in writing requests the superior court in and for that county to order that person to answer the question or produce the evidence, a judge of the superior court shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any fact or act concerning which, in accordance with the order, he was required to answer or produce evidence. . . ." (Italics added.)

6 Despite the court's and the prosecutor's references to transactional immunity, defendant was not granted transactional immunity, or immunity from prosecution, respecting the pending offenses. (See fn. 1, ante.) Clearly, the prosecutor was acting under the 1996 amendment to the immunity statute.

7 "This power stems from the common law principle that the public has a right to every person's evidence. It also serves to satisfy the Sixth Amendment requirement that a defendant be able to confront all witnesses against him or her. [Citations.]" (Graves v. United States (D.C.App. 1984) 472 A.2d 395, 398.)

8 The nature of defendant's uncharged offense here exemplifies the potential problems and collateral prejudice which can attend impeachment with unrelated criminal conduct. The prosecutor exploited the offense as a theft offense, to show that defendant was a person willing to do dishonest things, even when he knew they were wrong. The pending charge was for theft of multiple packets of pseudoephedrine tablets, a nasal decongestant. Defendant testified that he did not have any reason for stealing the tablets. But defendant's past record includes drug offenses involving methamphetamine. Pseudoephedrine tablets are the raw material for manufacturing methamphetamine. Consumers using pseudoephedrine tablets as an over-the-counter medication have come to know that such tablets are now available only in small quantities, and in elaborate, individually-wrapped packaging, precisely because of the high incidence of their use for illegal manufacture of methamphetamine. The evidence invited the jury to speculate as to the reason defendant would steal multiple packages of the drug -- much more than any individual user would need.

9 Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91].

10 Miranda v. Arizona, supra, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974].