Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR65408
DAVIS, Acting P.J.
A jury found defendants Gabriel Torres Farias and Pedro Sanchez guilty of assault with a deadly weapon (a knife) and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), second degree robbery (§ 211), kidnapping (§ 207, subd. (a)), and making criminal threats (§ 422). The jury sustained allegations that Farias personally used a deadly weapon (a knife) and personally inflicted great bodily harm in the commission of the offenses. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).)
Hereafter, undesignated section references are to the Penal Code.
The trial court sentenced Sanchez to 10 years and Farias to 14 years in prison. Both sentences included the upper term of eight years for kidnapping.
Defendants appeal, contending the trial court prejudicially erred in (1) refusing to allow them to impeach the victim with his prior inconsistent statements to law enforcement; (2) failing to sua sponte give a unanimity instruction in connection with the robbery and kidnapping charges; (3) failing to sua sponte give an instruction on false imprisonment by violence and menace, a lesser included offense of kidnapping; and (4) imposing the upper term for kidnapping based on the aggravated nature of the offense.
Defendants join in the arguments advanced in one another’s briefs. (Cal. Rules of Court, rule 8.200(a)(5).)
Agreeing with the first contention, we shall reverse the judgments against both defendants.
Because we shall reverse the judgments as a result of the trial court’s refusal to allow defendants to impeach the victim with his prior inconsistent statements, we need not address defendants’ remaining claims.
Facts and Procedural History
A. The Prosecution
From approximately August 1 through October 31, 2004, Carlos Hernandez lived in a trailer on Sanchez’s property. Farias also lived on Sanchez’s property during that time. Hernandez fell behind on his rent payments, but began giving Sanchez half his paycheck after he started working at the Cheda Dairy.
At some point prior to November 6, 2004, Hernandez agreed to buy a car from Sanchez for $1,200. Hernandez never paid Sanchez for the car, and apparently never took possession of it, “[b]ecause a lot of people had keys to the car, and they would take the car anytime they wanted to,” and “they didn’t have papers, either.” Hernandez believed the car was taken from Sanchez’s home by one of Sanchez’s girlfriends. Hernandez later purchased a Ford Thunderbird from Jose O’Campo, who ran an automobile repair shop on Sanchez’s property.
On the evening of November 6, 2004, Hernandez was working at the dairy. Some time after 8:00 p.m., Farias stopped by and told Hernandez, “‘Come on, [Sanchez] needs to talk to you.’” As Hernandez walked outside the dairy’s gate, Sanchez came up behind him and began pushing and shoving him, saying “he need[ed] the money that [Hernandez] owe[d] him” and “the car.” Hernandez gave Sanchez $200. Sanchez said $200 was not enough, he “‘need[ed] more.’” Hernandez gave him an additional $100. Sanchez said he “‘need[ed] more,’” and Hernandez gave him another $70.
Sanchez then told Hernandez to “get the T-bird” and drive it to “the orchard.” Sanchez said if Hernandez did what he was told, “everything [would] turn out okay,” and if he did not do as Sanchez said, Sanchez would kill him and his coworker. Hernandez drove to the orchard, and when he arrived, Sanchez told him to get in his (Sanchez’s) truck, and he would take Hernandez back to the dairy “later.” Hernandez got in the truck, but Sanchez did not take him back to the dairy. Instead, Sanchez drove him to a sparsely populated area, while Farias followed in the Thunderbird. Pedro Farias (Pedro), the brother of Farias, followed in a third car.
When they reached the sparsely populated area, Sanchez stopped the truck and told Hernandez to “‘[g]o across the road really quickly’” and “‘[t]hey are going to give you the car back.’” When Hernandez stepped into the road, Farias sped by in the Thunderbird, nearly hitting him.
As Hernandez walked down the road, Sanchez and Farias pulled up beside him in the Thunderbird. Farias was driving, and Sanchez was in the back seat. Believing the two men were going to take him back to the dairy, Hernandez began to get in the Thunderbird. As he did so, Sanchez grabbed him by the hair and pulled him into the back seat. Once Hernandez was inside the car, Sanchez and Farias smoked some methamphetamine from a pipe. Sanchez told Farias, “‘Why don’t you give [Hernandez] some so he won’t feel his death.’” Sanchez handed Hernandez the pipe and Hernandez smoked some methamphetamine. Sanchez and Farias then began hitting Hernandez. Next, Sanchez pulled out a knife and told Hernandez: “‘Now we are going to chop off your tongue so you won’t be gossiping.’” Sanchez then handed the knife to Farias, and said, “‘[k]ill him.’” Farias stabbed Hernandez 10 or 12 times, while Sanchez tried to hold Hernandez. Hernandez attempted to shield himself with his hands and was badly cut. Before Farias stabbed Hernandez, Sanchez reached into Hernandez’s pockets and took the rest of his money.
While Hernandez was inside the Thunderbird, he saw a cigarette in Sanchez’s mouth. According to Hernandez, Sanchez “always liked to chew on [them].”
Farias eventually lost control of the Thunderbird and drove into a ditch. Hernandez got out, ran away, and hid behind some trees. While he was hiding, he saw Pedro drive by in Sanchez’s truck and pick up Sanchez and Farias. When Pedro drove off, Hernandez walked to a friend’s house and eventually returned to the dairy.
Hernandez did not call the police because he feared Sanchez and Farias might kill him.
The following day, November 7, 2004, Hernandez returned to the place where the Thunderbird had gone into the ditch. When the car was not there, he went to the Corning Police Department to report it stolen. He was accompanied by Jose O’Campo, the registered owner of the Thunderbird. While there, both Hernandez and O’Campo were interviewed by Detective David Greer with the Tehama County Sheriff’s Department. When questioned about the interview at trial, Hernandez testified that “[e]verything [he] said [at trial] is what [he] talked to [Greer] about.” The substance of Hernandez’s interview with Greer is set forth below. (See pp. 8-10, post.)
On November 8, 2004, Greer prepared a search warrant for Sanchez’s property using the information he received during the November 7, 2004, interview. The warrant was signed by the judge and executed by Greer on November 9, 2004.
Law enforcement officers searched Sanchez’s home and surrounding grounds. Both Sanchez and Farias were at Sanchez’s home. Farias was wearing a red jacket that matched the description of a jacket Hernandez had told Greer Farias was wearing at time of the incident. Greer took the jacket as evidence. DNA consistent with that of Hernandez and Farias was found in blood samples taken from the jacket.
Law enforcement officers searched the Thunderbird and found a methamphetamine pipe and a cigarette with bite marks on it. DNA consistent with that of Farias and Hernandez was found on the pipe, and DNA consistent with that of Sanchez was found on the cigarette.
B. The Defense
1. Sanchez
Sanchez did not testify at trial. His brother testified that Hernandez offered to leave town and not testify at trial for $4,000. Sanchez’s defense was that Hernandez fabricated the entire incident to avoid getting into trouble for leaving his job.
2. Farias
Farias testified in his own defense. He said he was with Sanchez on the night in question. They were at a friend’s house from approximately 7:00 p.m. until around 11:00 p.m. From there, they went to a casino and stayed until around 1:00 a.m., and then returned to Sanchez’s home. Sanchez told Farias that Hernandez owed him (Sanchez) money.
Prior to November 6, 2004, the Thunderbird had been parked on Sanchez’s property for about two weeks, and Farias had driven it two or three times. Farias had also seen Sanchez in the car “probably like two times.” Farias got the red jacket he was wearing on November 6, 2004, from Sanchez some time prior to that date. Farias denied ever attempting to run over Hernandez or otherwise attack him.
During closing argument, Farias’s counsel conceded “[s]omehow or other that night [Hernandez] got stabbed,” “[a]nd that stabbing, from all the evidence, likely occurred in the Thunderbird.” Other than that, Farias’s counsel argued Hernandez’s version of events was unbelievable and a “bizarre tale.” Regarding the DNA evidence on the cigarette and methamphetamine pipe, counsel argued “that [the] car was in that complex for a while, that various people drove it, including [] Farias. That various people were in it from time to time, including [Sanchez]. That they smoked. That’s as good a reason at least as to why those items were found with that DNA as the reasoning given to you by [] Hernandez.” With respect to the blood found on the red jacket, Farias’s counsel noted the amount of blood was less than what one would expect to find had Farias stabbed Hernandez while wearing the jacket. He also argued that “because [] Farias’s blood was also on the jacket, it corroborates his account of a jacket that . . . made the rounds in that complex as far as who was wearing it when.” He also questioned the absence of blood on the right sleeve of the jacket, given Hernandez’s testimony that Farias stabbed him using his right hand.
C. Greer’s November 7, 2004, Interview of Hernandez and O’Campo
As previously mentioned, Greer interviewed Hernandez and O’Campo on November 7, 2004, the day after the incident. Greer prepared a four-page, single-spaced report concerning the interview. According to that report, Hernandez did not speak English, and Greer did not speak Spanish. O’Campo, who spoke both English and Spanish, served as a translator. Greer “was able to have [] O’Campo translate [his] questions and translate the interview with [Hernandez], as well as gather[] information from [] O’Campo himself.”
During the interview, Hernandez identified Sanchez, Farias, and Pedro as the individuals “who had accosted him and [were] involved in the theft of money from him and his injuries.” At approximately 9:00 p.m., Hernandez was at the dairy herding cattle, when he was visited by Farias, who told him that Sanchez wanted to speak with him. Farias led Hernandez to a “darkened area” where Sanchez “grabbed him around the neck” and demanded “all his money,” while Farias “removed a knife and stuck [it] to [] Hernandez’s side.” Hernandez said his wallet was in his pocket. Sanchez took the wallet from Hernandez and placed it in his own jacket.
“They” then “shuffled” Hernandez over to the Thunderbird. Pedro was also present “during this action.” Hernandez told the three men that he knew who they were, and they told him that they were going to kill him. “[T]hey” placed Hernandez in the back seat of the Thunderbird, behind the driver’s seat. Pedro sat in the back seat next to Hernandez, while Farias drove, and Sanchez followed in his truck.
As they drove away from the dairy, Pedro repeatedly hit Hernandez with a closed fist. After driving approximately two miles, Farias pulled over and told Hernandez he could get out and walk. Hernandez did so and began walking toward the dairy. As he was walking, Farias pulled up beside him and told him to “get in” and that they would take him back to the dairy. Hernandez did as he was told, and they began to drive toward the dairy, as Sanchez continued following in his truck. As they were driving, Farias told Pedro to kill Hernandez, and Pedro began to hit Hernandez. Farias then told Pedro “to give him [(Farias)] the knife,” which Pedro did, and Farias attempted to stab Hernandez. Hernandez attempted to shield himself with his hands and was cut multiple times with the knife.
As Farias attempted to stab Hernandez, he lost control of the Thunderbird and drove into a ditch. Hernandez got out, ran, and hid. While he was hiding, Hernandez saw Sanchez’s truck drive by with the headlights turned off. After a period of time, Hernandez walked to a friend’s house, and the friend drove him back to the dairy.
Near the end of his report, Greer noted “the interview with [] Hernandez . . . was not in as great detail as is needed. A further interview with [] Hernandez and a non-friend or family member as the interpreter is pending. [] Hernandez appeared to be in a considerable amount of pain, and the interview length was shortened due to his pain and suffering and requesting to be able to go lie down.”
Eight months later at trial, Greer testified he had “several” concerns “about the accuracy of the interview itself.” First, he said he had “no idea of [] O’Campo’s ability to translate from Spanish to English. It appeared that Spanish was his primary language.” Second, he understood O’Campo is related to Hernandez. Third, “it appeared . . . there was a considerable amount of confusion between [] Hernandez in translation and then the events in that I was having trouble following the events. And I think it got lost . . . in translation literally.” Finally, Hernandez “appeared to be in a considerable amount of pain, and did not really want to be there.” Greer also testified that although O’Campo’s English was “broken,” he “felt [he] understood what [O’Campo] was saying.”
Defendants sought to cross-examine Greer about statements made by Hernandez during the November 7, 2004, interview. The trial court refused to allow Greer to testify concerning Hernandez’s statements, finding “Detective Greer[] does not know what [] Hernandez said during that interview. All he knows concerning what [] Hernandez said during that interview was told to him by [] O’Campo. And that is within the classic definition of hearsay . . . .” When the issue was raised again later in the trial, the court “sustain[ed] the objection to [] O’Campo’s hearsay statements,” explaining that “we are dealing with an unsworn interpreter who has not been qualified. We have no way of knowing what his knowledge of English as opposed to Spanish and his ability to translate one way or the other. . . . We don’t know how honest he is. We have -– we know nothing about him. We are unable to test him by cross-examination. . . . [I]t’s [] classic hearsay[.]”
Discussion
Defendants contend that the trial court prejudicially erred in ruling that Hernandez’s prior inconsistent statements, made through an interpreter, constituted inadmissible hearsay. We agree.
While hearsay evidence is generally inadmissible (Evid. Code, § 1200), “[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” (Evid. Code, § 1235.) Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
Here, Hernandez’s prior inconsistent statements to Greer on November 7, 2004, satisfied the requirements for admission under Evidence Code sections 1235 and 770. Significant portions of Hernandez’s statements to Greer were inconsistent with his testimony at trial. For example, Hernandez told Greer that Farias and Pedro were in the Thunderbird; Farias told Pedro to give Farias the knife; and Farias attempted to stab Hernandez, while Sanchez followed in his truck. At trial, however, Hernandez testified that: Farias and Sanchez were in the Thunderbird; and that Sanchez pulled out a knife, handed it to Farias, and told Farias to “kill” Hernandez. These inconsistent statements satisfy Evidence Code section 1235. In addition, Hernandez testified and was given the opportunity to explain his prior inconsistent statements concerning the incident. Indeed, when asked about the November 7, 2004, interview, he stated that “[e]verything [he] said [at trial] is what [he] talked to [Greer] about.” And, at the time defendants sought to cross-examine Greer concerning the statements, Hernandez had not been excused from giving further testimony. These circumstances satisfy Evidence Code section 770. Accordingly, leaving aside the translation issue, Hernandez’s prior inconsistent statements were not made inadmissible by the hearsay rule.
We now turn to O’Campo’s translation of Hernandez’s statements. Our evaluation of the trial court’s determination that the use of an interpreter added an additional level of hearsay because Greer was recounting O’Campo’s statements, not Hernandez’s, is governed by our Supreme Court’s decision in Correa v. Superior Court (2002) 27 Cal.4th 444 (Correa). In Correa, two law enforcement officers testified at the defendant’s preliminary hearing concerning extrajudicial statements made by the Spanish-speaking victim and a Spanish-speaking witness, through the contemporaneous translation by two bystanders, during the officers’ investigation of the crimes. (Id. at p. 448.) The Court of Appeal held that the officers’ testimony concerning the statements constituted inadmissible multiple hearsay because the officers were recounting the statements of the translators, not the witnesses, and therefore, should not have been admitted. (Ibid.) Our Supreme Court reversed, noting that “the weight of recent authority in this and other jurisdictions does not treat the participation of a translator in such circumstances as interposing a layer of hearsay. Rather, a generally unbiased and adequately skilled translator simply serves as a ‘language conduit,’ so that the translated statement is considered to be the statement of the original declarant, and not that of the translator.” (Id. at p. 448.)
Although Correa is controlling authority, was discussed extensively in the trial court, and was cited by defendants in their respective opening briefs, the People inexplicably fail to address it.
The Supreme Court held that “whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker” “calls for a case-by-case determination.” (Correa, supra, 27 Cal.4th at p. 457.) In making that determination, a “court should consider ‘a number of factors . . . such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s qualifications and language skill, and whether actions taken subsequent to the conservation were consistent with the statements as translated.’” (Id. at p. 458, quoting United States v. Nazemian (9th Cir. 1991) 948 F.2d 522, 527.)
While the translators in Correa testified “regarding their language skills and the circumstances of the translation” (Correa, supra, 27 Cal.4th at p. 448), such testimony is not required in every case. (Correa, supra, 27 Cal.4th at p. 459.) Rather, only “‘where the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], [must] the translator or a witness who heard and understood the untranslated [statement] . . . be available for testimony and cross-examination at the . . . hearing before the [statement] can be admitted.’” (Id. at p. 459, quoting United States v. Martinez-Gaytan (5th Cir. 2000) 213 F.3d 890, 891, italics added.)
We review a trial court’s determination of whether a translated statement fairly may be considered to be that of the original speaker for an abuse of discretion. (Correa, supra, 27 Cal.4th at p. 467.)
Examining the record in light of the factors set forth in Correa, we observe that the translator, O’Campo, was not supplied by the parties, but by Hernandez himself. O’Campo’s neutrality is evident from the record. He was the registered owner of the Thunderbird, and there is no contrary suggestion of a motive to mislead or distort. Although Greer testified that he understood that Hernandez and O’Campo are related, there is no indication in the record as to how substituting Pedro for Sanchez or otherwise distorting Hernandez’s statement would assist Hernandez.
The record also reflects that O’Campo’s language skills were adequate. In his report, Greer noted that he “was able to have [] O’Campo translate [his] questions and translate the interview with [] Hernandez,” and at trial he testified that although O’Campo’s English was “broken,” he “felt [he] understood what [O’Campo] was saying.” While Greer also testified that he had “trouble following the events” and that he believed they “got lost . . . in translation,” there is no indication in the record as to what events were lost in translation. Moreover, Greer failed to question the accuracy of Hernandez’s statements or O’Campo’s translation in his four-page, single-spaced report, which he prepared four days after the incident, and relied on the information he obtained during the November 7, 2004, interview in seeking and obtaining a search warrant.
While Greer testified that Hernandez was in pain and “did not really want to be” at the interview, there is no indication in the record that Hernandez’s pain or his desire to leave impacted the accuracy of his statements or O’Campo’s translation. To the contrary, in his report, Greer cited Hernandez’s pain and desire to leave as necessitating “[a] further interview,” but made no mention of those factors (or any others) as impacting the accuracy of the information he obtained.
In sum, Greer’s subsequent reliance on the information, coupled with his failure to note any concerns regarding the accuracy of the interview in his report, undercut his subsequent testimony questioning the accuracy of Hernandez’s translated statements. Because the particular facts of this case do not “‘cast significant doubt upon the accuracy’” of Hernandez’s translated statements, O’Campo was not required to “‘be available for testimony and cross-examination’” at trial before Hernandez’s prior inconsistent statements could be admitted. (Correa, supra, 27 Cal.4th at p. 459.)
On this record, we conclude the trial court abused its discretion in determining Hernandez’s translated statements could not fairly be considered to be those of Hernandez and in refusing to allow defendants to impeach Hernandez with his prior inconsistent statements.
Having determined that the trial court abused its discretion, we next consider whether the error in excluding the impeachment evidence was harmless. Errors found under the ordinary rules of evidence which do not implicate federal constitutional rights are reviewed under so-called Watson error, i.e., whether it is reasonably probable that defendants would have received a more favorable outcome had the evidence been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) As we shall explain, the error was not harmless.
While the People argue that any error in refusing to admit evidence of Hernandez’s prior inconsistent statements was harmless as to Farias, they fail to address whether any error was harmless as to Sanchez.
Hernandez gave two versions of Sanchez’s role in the events that occurred after Hernandez was placed in the back seat of the Thunderbird. The day after the incident, Hernandez told Greer that: Pedro rode in the back seat of the Thunderbird, while Sanchez followed in his truck; Farias told Pedro to kill Hernandez; and Pedro gave Farias the knife Farias used to stab Hernandez. At trial, however, he testified that: Sanchez rode in the back seat of the Thunderbird, pulled him into the Thunderbird, threatened him with a knife, told Farias to kill him, gave Farias a knife, and held him while Farias stabbed him.
Most of the evidence supporting defendants’ convictions came from Hernandez’s trial testimony. Unquestionably, his credibility was the pivotal factor in this case. By excluding Hernandez’s prior inconsistent statements, the jury was precluded from making a credibility decision based on all available evidence. This was extremely prejudicial to Sanchez since the discrepancies concerned his role in certain key events. Given these discrepancies and the importance of Hernandez’s testimony, we find that had the jury known of Hernandez’s prior inconsistent statements, it is reasonably probable that a result more favorable to Sanchez would have been reached as to each of the charges against him. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we shall reverse Sanchez’s convictions.
Because we conclude the error was not harmless under Watson, we need not decide whether the stricter standard of beyond a reasonable doubt reserved for errors of constitutional dimension applies. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
The trial court’s error was also highly prejudicial to Farias because his convictions were inextricably intertwined with Sanchez’s actions inside the Thunderbird. The jury found that Farias used a knife during the commission of each of the offenses. Based on the evidence presented at trial, the only time Farias used a knife was after Hernandez was placed in the back seat of the Thunderbird. Thus, Farias’s convictions necessarily were based solely on events that occurred after Hernandez was placed in the back seat of the Thunderbird. As to those events, Hernandez testified that Farias acted in concert with Sanchez inside the Thunderbird, i.e., Sanchez handed Farias the knife, told Farias to stab Hernandez, and held Hernandez while Farias stabbed him.
We find that had the jury known that the day after the incident, Hernandez told Greer that Sanchez was never in the Thunderbird, but followed in his truck, it is reasonably probable that a result more favorable to Farias would have been reached as to each of the charges against him. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we shall reverse Farias’s convictions.
Disposition
The judgments are reversed.
We concur: HULL, J., ROBIE, J.