Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA081482, Gary J. Ferrari Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Joseph Wayne Foster of first degree burglary. At his trial, the trial court, first, admitted, under the adoptive admission exception to the hearsay rule, evidence of a statement that either defendant or his codefendant made; and, second, excluded evidence that police pressured a witness to implicate defendant in the crime. Defendant contends on appeal that the court prejudicially erred in making these evidentiary rulings. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
Ronke Bilesanmi was at her two-story home in Long Beach on September 22, 2008, when her doorbell rang around 11:45 a.m. Looking through a second floor window, she saw a tall, dark man, whom she identified as defendant, wearing a long, white T-shirt, on the sidewalk. A second Black man, Joseph Danshea Foster, came from the door and walked towards defendant. A gray Kia mini sport utility vehicle (SUV) drove by, and they got into it. Continuing to observe the car through different windows in her house, Bilesanmi saw the car drive away, but it came back and went into an alley behind Bilesanmi’s house and stopped. A light skinned woman—Mexican or Caucasian—drove the SUV, and there were three male passengers. Defendant and Foster got out from the back seat wearing something white, perhaps gloves, on their hands. They jumped over a fence into Bilesanmi’s “compound.”
Defendant and appellant Joseph Wayne Foster and Joseph Danshea Foster are brothers. We refer to Joseph Wayne Foster as defendant and to Joseph Danshea Foster, who is not a party to this appeal, as Foster.
Terrified, Bilesanmi called her husband, who told her to call 911. She heard the sound of breaking glass, and she called 911. Police officers arrived approximately five minutes later. They discovered a broken window from which a screen had been removed in one of the rooms and a damaged window screen in the kitchen that looked as if someone tried to pull it out.
Officer Luis Corona saw a car driving towards Orange Avenue matching the description Bilesanmi gave to the police. Sheryl Deken was driving the car, and defendant, Foster, and Johnny Wilkins were passengers. A screwdriver was on the floor behind the front passenger and electronic items and miscellaneous items were in a bag in the back seat. Defendant refused to get out of the car, wedging his legs in a manner to prevent his removal from it.
Bilesanmi identified defendant, Foster, and Deken at field showups less than an hour later. She identified Deken by her ponytail. Bilesanmi was unable to identify Wilkins. Bilesanmi also identified defendant at trial.
Deken testified that she was driving a Kia Sportage that day around 11:45 a.m. Defendant, Foster, and Wilkins were in the car with her. Defendant was her boyfriend. They drove to an alley, where defendant and Foster got out of the car to talk to somebody while Deken and Wilkins remained in the car, smoking marijuana and watching a movie. Perhaps less than 15 minutes later, defendant and Foster returned to the car in a rush and told Deken to leave. They left, but when they saw police, either defendant or Foster said, “ ‘Oh, shit.’ ” Either defendant or Foster said something about broken glass.
II. Procedural background.
On October 19, 2009, a jury found defendant guilty of first degree burglary (Pen. Code, § 459) and found true an allegation that a person, other than an accomplice, was present in the residence during the commission of the offense.
All further undesignated statutory references are to the Penal Code.
The jury found Foster also guilty of first degree burglary.
On February 3, 2010, after finding that defendant had two strike priors within the meaning of the Three Strikes law the trial court sentenced him to 25 years to life plus two consecutive five-year terms under section 667, subdivision (a)(1), for a total of 35 years to life.
DISCUSSION
III. Adoptive admissions.
Deken, the driver, testified that when defendant and Foster returned to the car one of them told her to go and mentioned something about glass breaking. She was unsure which of them said it. Defense counsel objected to the evidence on hearsay grounds, but the trial court overruled the objection, finding it was an adoptive admission.
Evidence of a statement made other than by a witness while testifying at trial and that is offered to prove the truth of the matter asserted is hearsay and is inadmissible, unless there is an exception for its admission. (Evid. Code, § 1220.) One exception is for statements made by a party. (Evid. Code, § 1200, subd. (a).) Another is for adoptive admissions: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) Under this section, “ ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189; see also People v. Jennings (2010) 50 Cal.4th 616, 661.)
For the adoptive admission exception to apply, the accusation need not be direct. (People v. Riel, supra, 22 Cal.4th at p. 1189.) Rather, “ ‘[w]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ ” (Ibid.) “To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.) But where nothing in the remarks refer to the defendant or accuse him of anything, there is nothing for the defendant to deny, and a condition of the hearsay exception for adoptive admissions does not exist. (People v. Carter (2003) 30 Cal.4th 1166, 1196-1197.)
Assuming arguendo that the statement here was hearsay, the statement—that defendant or Foster said something about glass breaking—was not a direct or indirect accusation of a crime. It was an ambiguous statement that on its face did not necessarily call for a response. The vagueness of a reference to glass breaking contrasts with cases in which the accusation in the challenged statement was clear and admissible as an adoptive admission. (See, e.g., People v. Riel, supra, 22 Cal.4th at p. 1189 [statements by the defendant’s coperpetrators to a third person, made while defendant sat silently a few feet away, regarding a robbery defendant and his coperpetrators had just committed]; People v. Fauber (1992) 2 Cal.4th 792, 852 [statements made by the defendant’s coperpetrators in the defendant’s presence regarding disposing of the victim’s body and bicycle and finding cocaine on the victim]; People v. Preston (1973) 9 Cal.3d 308, 314 [statements made in defendant’s presence by a coperpetrator to a third person, that “ ‘we went down to your mother’s trailer house, and we broke in, and as we were leaving, we had everything ready to go out, and they came in, and there was an accident and... but they won’t talk, ’ ” and the defendant’s comment, “ ‘There wasn’t much money’ ” were adoptive admissions]; People v. Cruz (2008) 44 Cal.4th 636, 672 [when asked which one of them “had done that wicked thing, ” the codefendant motioned with his head toward the defendant, who made no response].)
It is possible that defendant made the statement about “glass breaking, ” in which case it was admissible as a party admission under Evidence Code section 1220. (People v. Castille (2005) 129 Cal.App.4th 863, 875-876.)
Any error in admitting the statement as an adoptive admission, however, was harmless under either Chapman v. California (1967) 386 U.S. 18, 24 or People v. Watson (1956) 46 Cal.2d 818, 836-837. (See generally, People v. Carter, supra, 30 Cal.4th at p. 1197 [finding error harmless under both standards].) First, it is not clear that the challenged statement was hearsay. It wasn’t being offered to prove the truth of the matter asserted, namely, that glass was broken. It was offered to establish that defendant or his codefendant knew about broken glass.
Second, the evidence was overwhelming that defendant committed the crime. Bilesanmi, the victim, heard her doorbell ring and saw Foster, defendant’s brother, walking away from her door towards defendant. She watched as defendant and Foster got into a KIA driven by Deken, as the KIA parked in the alley behind Bilesanmi’s house, and as defendant and Foster got out and jumped over the fence into Bilesanmi’s yard. Deken confirmed that defendant and Foster got out of the car, although she didn’t see what they did next. Bilesanmi then heard glass breaking and screamed. Defendant and Foster returned to Deken’s car in a “rush, ” and told her to go. When officers stopped the car, defendant was recalcitrant, refusing to get out of the car. Bilesanmi identified defendant, Deken, and Foster at field showups, although she didn’t identify Johnny Wilkins, which was consistent with her testimony that she only saw defendant and Foster and that she identified Deken by her ponytail. Bilesanmi also identified defendant at trial. Given this evidence, any error in admitting a statement that either defendant or Foster said something about glass breaking was harmless.
IV. Defendant’s confrontation rights were not violated.
During cross-examination of Deken, defense counsel asked a series of questions to show that Deken testified against defendant because the interrogating officers and detective threatened to place her daughter in child protective services where she would remain for months. Any error the trial court made in sustaining objections to the evidence was not prejudicial.
“A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Although the United States Supreme Court, in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303, “determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citation.]” (Cornwell, at p. 82; see also People v. Ayala (2000) 23 Cal.4th 225, 301 [“we have repeatedly held that ‘not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.’ [Citation.]”]; Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process claims, usually citing Chambers v. Mississippi, supra, 410 U.S. 284, are often overbroad, as Chambers was a fact intensive, specific case].)
Here, defendant points to three instances where his confrontation rights were allegedly denied: First, Deken testified that Detective Zigrang told her to listen to him before she made things worse for herself and her family. The court then sustained a hearsay objection to this question: “And he told you that Jo Jo’s [defendant] going... to do a residential burglary and you’re the getaway driver and he didn’t tell you anything about it, correct?”
Second, Deken testified that while talking to the officers, they brought to her attention five or more times that her daughter would be going to child protective services and not with a family member. Defense counsel then asked if the officers told her it would take six months to determine whether the child would go to foster care. Deken answered that it would take six months or longer, but the trial court sustained the prosecutor’s hearsay objection and granted a motion to strike.
Third, the trial court sustained an objection to codefense counsel’s question about immunity:
“Q. Now, you stated that the D.A. told you you had immunity as long as you tell the truth, right?
“A. Yes.
“Q. Okay. And in your mind, the D.A. and the police agency determines if you tell the truth or not today, right?” The prosecutor’s objection on the ground the question was argumentative was sustained.
Without addressing the merits of the trial court’s rulings, we will assume arguendo that the court wrongly sustained objections to these three questions. Defendant’s confrontation rights were still not violated, because he was permitted to extensively explore the notion that Deken was pressured to implicate him in the crime. She was asked questions about and testified to, for example, that she was unable, during her arrest, to verify her daughter’s well-being; that before she told officers anything about the incident, the officers talked to her about her daughter, making Deken fear that her daughter would be taken from her; that she had received a grant of immunity; that “[t]he only thing that was brought to my attention about my daughter is that she was going to be going with the DHS”; that Officers Molinar and Radcliffe said they didn’t believe her story and that the Department of Children Services might get involved with her six-year-old daughter, who could be placed in foster care; that a family member would not be allowed to pick her daughter up from school and that someone from the department would do it; that Detective Zigrang told her he didn’t think families should be broken up, especially mothers and children, and she needed to think about the future; that she felt intimidated by the officers because she thought she was going to lose her daughter; that the first two officers she spoke to were demanding and mean and “used” her daughter, telling Deken that her daughter was going to be taken; but the detective was nicer, telling her that she and her daughter needed to stay together; and that before and after talking to the detective she was worried her daughter would be taken from her.
Despite this extensive cross-examination on Deken’s credibility and motive, defendant argues that the excluded evidence was crucial, that it emphasized and clarified the strong incentives (avoiding prosecution and her daughter’s placement in foster care) to implicate defendant in the burglary. As we have said, however, the right to confront witnesses is not absolute. The trial court has wide latitude to control and to restrict cross-examination. (People v. Ayala, supra, 23 Cal.4th at p. 301.) The court here gave defendant sufficient latitude to attack Deken’s credibility. His due process rights therefore were not violated.
V. The abstract of judgment must be modified.
Defendant was sentenced to 25 years to life for first degree burglary plus two 5-year terms under section 667, subdivision (a)(1). The abstract of judgment, however, incorrectly shows that defendant was sentenced to life with the possibility of parole (line 5) and to 25 years to life (line 6) on count 1. The abstract also does not indicate that defendant was sentenced under the Three Strikes law (line 8). The abstract must be corrected accordingly.
DISPOSITION
The clerk of the superior court shall modify the abstract of judgment to show that defendant was not sentenced to life with the possibility of parole. The abstract should also indicate that defendant was sentenced under the Three Strikes law. The modified abstract shall be forwarded to the Department of Corrections. The judgment is otherwise affirmed.
We concur: CROSKEY, Acting P. J. KITCHING, J.