Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF003682. Christian F. Thierbach, Judge.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jim Dutton and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant Rogelio Fuentes was charged with first degree burglary (Pen. Code, § 459), robbery (Pen. Code, § 211), and the first degree murder of 16-year-old Miguel Hernandez (Pen. Code, § 187, subd. (a)). A jury found defendant guilty on all three counts. The jury also found defendant had used a dangerous and deadly weapon, a knife, in the commission of the murder (Pen. Code, § 12022, subd. (b)(1)) and that the murder was committed during the course of the robbery and burglary (Pen. Code, § 190.2, subd. (a)(17)(A) & (G)). Defendant was sentenced to an aggregate term of life without the possibility of parole plus one year.
Defendant first contends the trial court erred in admitting into evidence separate confessions he made to his girlfriend, Araceli Hernandez, and to his mother, Mrs. Fuentes, admitting he had murdered Miguel. Araceli was the older sister of the murder victim, Miguel Hernandez. Defendant claims his confessions to Araceli and Mrs. Fuentes were inadmissible as fruit of the poisonous tree because they were made shortly after he gave an involuntary, coerced confession to Detective Steven Nieves of the Banning Police Department.
The trial court suppressed defendant’s confession to Detective Nieves on the ground it was not voluntary; rather, it was made as a result of implied promises of leniency, threats of capital punishment, and threats of incarceration of those near to defendant. The trial court also found, however, that defendant’s subsequent confessions to Araceli and Mrs. Fuentes were voluntary, and that defendant’s request to speak to each of them was an intervening act sufficient to purge the confessions of the taint of his earlier coerced confession to Detective Nieves. Upon independent review, we conclude that defendant’s confessions to Araceli and Mrs. Fuentes were voluntary and sufficiently removed from the primary taint of his earlier coerced confession to be admissible at trial.
Defendant further contends that the trial court erroneously refused to admit into evidence, as a statement against penal interest (Evid. Code, § 1230), a confession to the crimes made by Mark Gastelum, while in jail, to fellow inmate Lavasta Amis, who then relayed Gastelum’s confession to Detective Michael Nava of the Banning Police Department. The trial court concluded that Gastelum’s confession was inadmissible because it did not bear sufficient indicia of trustworthiness. In so ruling, the court relied on defendant’s confessions to the murder, plus the fact he directed police to where he had dumped some of the property he stole at the time of the murder. We conclude that, although the trial court erred in relying on defendant’s confessions and knowledge of the whereabouts of the stolen property in ruling that Gastelum’s confession was unreliable, the circumstances surrounding Gastelum’s confession nevertheless indicate it was not sufficiently trustworthy to be admissible under section 1230.
All further statutory references are to the Evidence Code unless otherwise indicated.
Lastly, defendant contends the trial court erroneously allowed the prosecutor to introduce evidence of his illegal methamphetamine use to show he had a motive to commit the crimes. He maintains the evidence was both irrelevant and unduly prejudicial. We conclude that the evidence was properly admitted.
II. FACTS AND PROCEDURAL HISTORY
A. The Events That Took Place on October 20, 2002
Around 9:00 a.m. on the morning of Sunday, October 20, 2002, Isabel Hernandez left her house in Banning, California on a trip to pick up her husband, Roberto, in Tijuana. Isabel took her youngest daughter, her mother, and her sister along, but allowed her 16-year-old son, Miguel, to stay home to watch football. When Isabel left that morning the house was locked, Miguel was lying on the couch, and no other family members were home.
Isabel’s other daughter, Araceli, was defendant’s girlfriend. On the morning of Saturday, October 19, Araceli and defendant’s parents left home to attend a baptism in Ensenada, and were not scheduled to return home until the evening of October 20. Although defendant was originally supposed go on the trip to Ensenada, he informed Araceli two days before the trip that he would not be able to go because he had to work that weekend. Defendant did not work that weekend, however.
When Isabel arrived home around 7:30 p.m. on the night of October 20, the house was pitch black and the front door was unlocked. Isabel and her youngest daughter entered the house and found it had been ransacked. As Isabel walked by the master bedroom, she discovered her son Miguel lying dead on the floor in a pool of blood. It was later discovered that Miguel had been stabbed multiple times and strangled with an electrical cord. Many items were taken from the house, including a camera from the living room, coins from Miguel’s closet, stereo speakers, jewelry, and money that had been hidden inside a curio within the headboard of the bed in the master bedroom. Araceli’s room was the only room which did not appear to have been ransacked, even though jewelry was within plain sight on a dresser.
Around 5:00 p.m. on October 20, Araceli and defendant’s parents began the trip home from Ensenada. Around 6:30 p.m., defendant called his father’s cell phone and spoke to Araceli. During the conversation, defendant asked Araceli to stop by his house before going home. At 7:51 p.m., defendant again called his father’s cell phone and spoke to Araceli. During the second conversation, defendant told Araceli he had forgotten to mention that her brother Miguel had called him that day and stated that two “bald guys” had gone to the Hernandez home looking for defendant. Defendant said he went over to the Hernandez house but nobody was home. Defendant eventually told Araceli that he asked her to stop by his house because one of his friends had heard on a police scanner that somebody had been shot in front of the Hernandez house and the friend thought it was defendant.
B. The Murder Investigation and Discovery of Evidence
The investigation of Miguel’s murder led to the discovery of a witness, Luis Castellanos, who was a friend of the Hernandez family. Mr. Castellanos saw defendant walking in the vicinity of the Hernandez house between 11:00 a.m. and 12:00 noon on the morning of Miguel’s murder. Mr. Castellanos testified that, although defendant recognized him and waved at him, he appeared angry and had “an attitude.”
The investigation also led to the discovery of the Hernandez phone records. The records showed that four calls were made from the Hernandez home, between 11:41 a.m. and 11:48 p.m. on October 20, to the cell phone of defendant’s father. Miguel had no relationship with defendant’s father and had no reason to call him. A fifth call from the Hernandez home was made at 2:23 p.m. to one of defendant’s friends, who was also named Miguel. Araceli knew of defendant’s friend Miguel and suspected he was a drug dealer. Defendant had called his friend Miguel 22 times earlier that month from a cell phone Araceli had lent him.
The evidence also showed that the Hernandez family kept a set of spare house keys on a tree in the backyard and defendant knew where the keys were located. Defendant also knew where to find the key to Isabel’s Merkur Scorpio, which was parked in the driveway of the Hernandez home on October 20, 2002. After the murder, Isabel noticed that the Merkur had been moved. Unbeknownst to Isabel, defendant had previously driven the car.
The police uncovered no signs of forced entry into the Hernandez home. Nor did they find any physical evidence inside the house that connected defendant to the murder. But later during the evening of October 20, Detective Nieves observed bruises on defendant’s hands.
III. DISCUSSION
A. The Admission of Defendant’s Statements to Araceli and Mrs. Fuentes
Defendant claims that two separate confessions he made to his girlfriend, Araceli, and to his mother, Mrs. Fuentes, admitting he had murdered Miguel, were both erroneously admitted because they were part of one continuous transaction stemming from an earlier coerced confession he made to Detective Nieves. We conclude that the subsequent confessions were properly admitted.
1. Relevant Background
Before trial, defendant sought to suppress his confession to Detective Nieves and his subsequent confessions to Araceli and Mrs. Fuentes. Following a section 402 hearing, the trial court suppressed defendant’s confession to Detective Nieves, on the ground it was involuntary because it resulted from implied promises of leniency, threats of capital punishment, and threats of incarceration of those near to defendant. The court also suppressed additional evidence, namely, that following defendant’s confession he led police to where he had dumped some of the property he had stolen from the Hernandez home, on the ground that the evidence was a fruit of defendant’s initial coerced confession. The trial court ruled that defendant’s subsequent confessions to Araceli and Mrs. Fuentes were admissible, however, because defendant’s repeated requests to talk to them constituted intervening factors which purged the confessions of the taint of his earlier coerced confession.
At the section 402 hearing, the court was presented with the facts surrounding defendant’s initial and subsequent confessions. The crimes were unsolved and the investigation remained open through late 2004. In November 2004, as a ruse, Detective Nieves and Isabel arranged for defendant to meet with Isabel and Araceli at a restaurant in Redlands to discuss defendant’s relationship with the family. Araceli had recently become pregnant with defendant’s child. When he arrived at the restaurant, defendant exited a vehicle and tried to run when he saw Detective Nieves. Detective Nieves chased defendant and arrested him on a matter unrelated to the murder of Miguel. Defendant was then transported directly to the Banning Police Department by another officer.
At the police station, another officer brought Detective Nieves’s case file on Miguel’s murder into the interrogation room. Detective Nieves then brought Araceli into the interrogation room while defendant waited in the booking room. Detective Nieves told Araceli that he knew defendant had murdered Miguel. Detective Nieves showed Araceli his case file, which he claimed contained DNA evidence pointing to defendant’s guilt, when in fact there was no such DNA evidence. At the conclusion of his interview with Araceli, Detective Nieves said to Araceli, “when I walk him through here you need to tell him to be honest.” Detective Nieves then told Araceli that he had shown her everything and asked if there was any doubt in her mind about defendant’s guilt. Araceli responded, “[n]o I just want everything to . . . end today.”
After the interview, Araceli was walked to another area of the station and then defendant was brought in for interrogation. As defendant was brought into the room, Araceli told defendant to tell the truth. Defendant did not respond to Araceli’s request, so the record is unclear whether defendant actually heard Araceli. However, it appears that defendant heard Araceli since the recording device in the interrogation room was able to record Araceli’s request.
Once in the room, Detective Nieves informed defendant that he had several warrants out for his arrest and had incriminating DNA evidence and phone records in his case file. Detective Nieves then advised defendant of his Miranda rights, which defendant waived, and Detective Nieves began to question defendant. During the course of the interrogation, Detective Nieves made numerous references to the false DNA evidence, as well as numerous references to the death penalty. Initially, defendant denied any involvement in the murder of Miguel. As the interrogation continued, Detective Nieves placed more focus on defendant’s family members and Araceli. Detective Nieves told defendant that if he did not tell the truth Detective Nieves would be forced to take action against defendant’s family members and Araceli. More specifically, Detective Nieves stated that Araceli would go to jail and child protective services would take the baby if defendant continued to lie. Detective Nieves also threatened to enhance defendant’s bail and take away all his privileges in addition to searching his family’s house. Eventually, defendant confessed to the murder of Miguel.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
Defendant stated that he found house keys in the backyard and had planned to enter the Hernandez home and take $20. After getting no response at the door, defendant believed no one was home and used the key to enter the house. After entering, he was surprised to see Miguel standing there. Defendant pretended that he had entered the house to find his work keys and then subsequently used the phone. He called his dad and pretended that he was calling his work. Defendant then claimed that he panicked, since he knew he was not supposed to be there, and killed Miguel. He then attempted to fake a robbery by pulling out drawers and taking various items from the house. At this point, defendant was still nervous so he drove around in the Merkur that had been parked in the driveway. Defendant later directed Detective Nieves to a location near Highway 234, where he had dumped some of the items he took from the Hernandez home. Defendant also admitted using the Hernandez phone to call a friend.
At the end of the interview, defendant asked Detective Nieves not to tell Araceli he had murdered Miguel and asked multiple times if he could see her. Detective Nieves exited the room and several minutes went by while defendant was alone in the interrogation room. Detective Nieves then reentered the room and defendant immediately asked again if he could see Araceli. Detective Nieves responded by saying that he did not tell Araceli anything and defendant again asked if he could see her. Detective Nieves then exited the room and Araceli entered, failing to close the door behind her. Upon entering, Araceli was crying and said, “What?” Defendant began crying and Araceli said, “Tell me the truth, did you Roger[]? The whole time, it was you the whole time. . . .” Defendant then called her “[b]aby” and began speaking in Spanish. Araceli then asked, “If it wasn’t you why” and defendant cut in by saying, “[y]es it was me.”
After defendant confessed to Araceli, Detective Nieves walked defendant to the booking area. Detective Nieves first asked defendant if he was going to tell Mrs. Fuentes. Defendant acknowledged that he planned to tell Mrs. Fuentes and Detective Nieves responded by telling defendant that he, Detective Nieves, would not tell her. Defendant replied, “I need to call my boss, try to call my mom too ‘cause . . . he didn’t pay me.” Upon defendant’s request, Mrs. Fuentes was called by someone at the Banning Police Department and she arrived approximately 15 to 20 minutes later.
The conversation between defendant and Mrs. Fuentes was conducted in Spanish and took place in a room near the booking area. Detective Nieves testified he waited outside the room, but overheard the conversation. Detective Nieves spoke Spanish and understood what was being said. Mrs. Fuentes testified that Detective Nieves stayed in the room almost the entire time she was with defendant. The conversation was recorded by a microcassette that Detective Nieves hid in the vicinity. Detective Nieves did not tell defendant or Mrs. Fuentes that he was recording their conversation. Mrs. Fuentes sat down next to defendant and defendant began the conversation by asking his mother if she could bring his and Araceli’s child to visit him in jail. Mrs. Fuentes responded by asking why he was there. Defendant answered that he was there for what he had done to Miguel. In response to Mrs. Fuentes’s statement, “It [can’t] be true,” defendant told his mother two times that he had killed Miguel.
2. Applicable Law
At trial, the People bear the burden of proving by a preponderance of evidence that the defendant’s confession, made while the defendant was in police custody, was voluntary. (People v. Jones (1998)17 Cal.4th 279, 296.) Furthermore, when “‘an accused makes one confession and then testifies or upon subsequent questioning again confesses, it is presumed that the testimony or second confession is the product of the first.’” (People v. Hogan (1982) 31 Cal.3d 815, 843 (Hogan), disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836.) The burden is thus on the People to break the causal connection between the first and subsequent confessions. (Ibid.) If the prosecution cannot break the chain, then the subsequent confession will be inadmissible as fruit of the poisonous tree. (Ibid.) The trial court, in determining whether the subsequent confession was voluntary, should look at whether the subsequent confession was an exploitation of the initial illegality or whether it was instead produced by “means sufficiently distinguishable to be purged of the primary taint.” (Nix v. Williams (1984) 467 U.S. 431, 442 [104 S.Ct. 2501, 81 L.Ed.2d 377].)
To determine whether a subsequent confession has been purged from the taint of misconduct, the trial court looks at a variety of intervening factors such as “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators . . . .” (Oregon v. Elstad (1985) 470 U.S. 298, 310 [105 S.Ct. 1285, 84 L.Ed.2d 222] (Elstad).) The court may also look at evidence which suggests that the coercion is still affecting the defendant or if the conditions which precluded the admissibility of the initial confession have been removed. (Lyons v. State of Oklahoma (1944) 322 U.S. 596, 602 [64 S.Ct. 1208, 88 L.Ed. 1481]; United States v. Bayer (1947) 331 U.S. 532, 540-541 [67 S.Ct. 1394, 91 L.Ed. 1654] (Bayer).)
On appeal, the voluntariness of a confession is reviewed independently by the appellate court. (People v. Jones, supra, 17 Cal.4th at p. 296.) However, the details of the interrogation, the characteristics of the accused, and other findings regarding the circumstances surrounding the confession are subject to review for substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 826.)
3. Analysis
As noted, the trial court ruled that defendant’s confession to Detective Nieves was coerced and involuntary, because it was made as a result of Detective Nieves’s implied promises of leniency, threats of capital punishment, and threats of incarceration of those near to defendant. But the court also ruled that defendant’s subsequent confessions to Araceli and Mrs. Fuentes were admissible. Relying on People v. Terrell (2006)141 Cal.App.4th 1371 (Terrell), the court reasoned that defendant’s requests to speak to Araceli and Mrs. Fuentes constituted intervening factors which purged his subsequent confessions of the taint of his earlier coerced confession to Detective Nieves. The trial court was correct.
In Terrell, the defendant was suspected of being involved in a robbery, which ultimately led to a shooting. (Terrell, supra, 141 Cal.App.4th at p. 1376.) When Terrell was interrogated, he initially invoked his right to remain silent, but the police continued to question him and he ultimately confessed. (Id. at pp. 1376, 1382.) At the end of the interview, Terrell requested that he be allowed to call his mother and other family members. (Id. at p. 1376.) Officers then left the room and decided to record Terrell’s conversations, which included a second and more detailed confession of the crime. (Ibid.)
On appeal, the reviewing court concluded that Terrell’s subsequent confession to his mother and other family members was not made under “custodial interrogation or its functional equivalent.” (Terrell, supra, 141 Cal.App.4th at p. 1386.) Relying on Arizona v. Mauro (1987) 481 U.S. 520 [107 S.Ct. 1931, 95 L.Ed.2d 458] and Rhode Island v. Innis (1980) 446 U.S. 291 [100 S.Ct. 1682, 64 L.Ed.2d 297], the court noted that custodial interrogation can extend to ploys by police officers or other functional equivalents of express questioning, but further reasoned that “merely acquiescing in defendant’s unprompted request to call his family is not such an act. Moreover, there can be no coercion for Miranda purposes when the defendant is subjectively unaware of any police involvement in eliciting or recording his statements.” (Terrell, supra, at p. 1386, citing People v. Guilmette (1991) 1 Cal.App.4th 1534, 1540.)
Here, defendant’s repeated requests to speak to Araceli—just like Terrell’s request to speak to his mother—was a superseding or intervening act that purged his confession to Araceli of the taint of his earlier coerced confession to Detective Nieves. Defendant, of his own volition, asked to see Araceli multiple times. Detective Nieves then left defendant alone in the interrogation room for several minutes. During this time, defendant had ample opportunity to reflect back on what had taken place and to contemplate his next decision. Detective Nieves then reentered the room and defendant made several more requests to see Araceli. Defendant’s repeated requests after a time of reflection also weigh in favor of finding a break in the causal chain.
Defendant’s environment had also changed by the time he confessed to Araceli. Detective Nieves testified that the “mood in th[e] room” following defendant’s coerced confession was that the interrogation had concluded. Detective Nieves and defendant were speaking casually about various things, including living in Mexico, before Detective Nieves left defendant alone in the interview room.
Furthermore, defendant had an intimate relationship with Araceli which was quite different than his adversarial relationship with Detective Nieves. This is yet another factor that weighs in favor of breaking the causal connection between defendant’s coerced confession to Detective Nieves and his subsequent confession to Araceli.
Regarding defendant’s confession to Mrs. Fuentes, defendant initiated the contact, just as he did with Araceli, and just as the defendant did in Terrell, supra, 141 Cal.App.4th at page 1382. And, although Detective Nieves asked defendant if he was going to confess to Mrs. Fuentes, Detective Nieves also told defendant that he, Detective Nieves, was not going to tell her. The police then called Mrs. Fuentes, who did not arrive until 15 to 20 minutes later. This 15 to 20 minute period gave defendant additional time to reflect. The environment surrounding the confession to Mrs. Fuentes had also changed. Defendant was now talking to Mrs. Fuentes, instead of the police, and he was no longer in the interrogation room. Taking all of these factors into consideration, defendant’s request to see Mrs. Fuentes was sufficient to purge his confession to her of the taint of his initial confession to Detective Nieves.
Defendant’s confessions to Araceli and Mrs. Fuentes can best be explained, not by coercion, but by defendant’s desire to confess to the people closest to him. As the high court in Bayer, supra, 331 U.S. at pages 540 and 541, observed, “[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.”
During the course of the interrogation by Detective Nieves, defendant was clearly concerned with how he would be perceived by his family after he confessed. Defendant acknowledged that Araceli and his baby were the most important things to him. Defendant also asked Detective Nieves whether Detective Nieves had to tell his family about what defendant would say. At the end of the interrogation, defendant said he simply wanted to tell Araceli that he loved her and that he wanted to give her a hug. Taking this into consideration, it cannot be successfully argued that defendant wanted to see Araceli in a mere attempt to appease Detective Nieves. Instead, defendant’s request can best be explained by his desire for the love and affection of Araceli, or as a result of the practical disadvantage discussed in Bayer. Defendant, having just confessed, realized that Araceli would soon find out the truth if she was not already aware of it.
Defendant’s confession to Mrs. Fuentes can also be explained by his desire to have her hear the truth from him. In response to Mrs. Fuentes’s repeated protestations that he could not have killed Miguel, he repeatedly told her it was true.
Defendant, in trying to distinguish the facts at bar from Terrell, suggests his position is more analogous to the defendant in Hogan, supra, 31 Cal.3d 815. In Hogan, the defendant was convicted of murdering members of a coworker’s family. (Id. at pp. 820-822.) Hogan had been interviewed three times by police and denied culpability during the first two interrogations. (Id. at p. 836.) After the second interview, Hogan spoke to his wife and the conversation was secretly recorded. (Ibid.) Hogan’s wife was given false information by the police, and mentioned to Hogan that she thought the evidence pointed to his guilt. (Id. at p. 837.) Thereafter, during a third police interrogation, Hogan confessed to police, and 10 minutes later he had another conversation with his wife. (Id. at pp. 827-829.) Before that conversation, Hogan’s wife was told Hogan had confessed. And during that conversation, Hogan made additional incriminating statements to his wife. (Ibid.) Hogan also made incriminating statements during a secretly recorded interview the next day. (Ibid.)
On appeal, Hogan argued that his statements to his wife should have been excluded as extensions of his initial coerced confession to police. (Hogan, supra, 31 Cal.3d at p. 834.) The Hogan court held the statements were inadmissible and reasoned that: (1) the police consciously used Hogan’s wife to elicit incriminating information; (2) the visitation between Hogan and his wife occurred after two unsuccessful attempts by police to illicit a confession; (3) Hogan’s wife was primed with false information that led her to believe that he was guilty, and she expressed this belief to Hogan; and (4) Hogan’s conversation with his wife was simply a continuance of the coerced police interrogation because Hogan knew he was being recorded. (Id. at pp. 838-843.)
The facts of Hogan are inapposite to the case at bar for the following reasons: First, the police did not use Araceli or Mrs. Fuentes as extensions of their interrogation. Mrs. Fuentes testified that she was not instructed on what to say to defendant, and there is no evidence that she was given any such instructions. In addition, Detective Nieves merely told Araceli, “when I walk him through here you need to tell him to be honest.” Although Araceli told defendant exactly what Detective Nieves asked her to say, it cannot be successfully argued, in light of the intervening circumstances discussed above, that Araceli’s mere demand for honesty from defendant constituted an extension of Detective Nieves’s police interrogation. And, even if Araceli was used as a ploy, defendant was subjectively unaware of any police involvement when he confessed to Araceli. (Terrell, supra, 141 Cal.App.4th at p. 1386.)
Second, defendant, unlike the defendant in Hogan, confessed to police just prior to his confessions to Araceli and Mrs. Fuentes. The police in Hogan were apparently frustrated with their inability to obtain a confession and as a result switched tactics. That is not the case here. The investigators in Hogan tried to use a fresh yet familiar face armed with false evidence to gain a confession. Detective Nieves on the other hand had already obtained a confession, even though it was later deemed inadmissible.
Third, although Detective Nieves falsely told Araceli that he had DNA evidence linking defendant to the crimes, Araceli did not, as Hogan’s wife did, suggest to defendant that any evidence pointed to him. Instead, she simply asked defendant to tell the truth. Similarly, Mrs. Fuentes was not given any false information and did not tell defendant she thought he was guilty.
Finally, Detective Nieves testified that the “mood” in the interview room was that the interrogation was over before defendant confessed to Araceli and Mrs. Fuentes. Detective Nieves also told defendant that the tape recorder was off. Hogan, on the other hand, had reason to believe his police interrogation was not over when he spoke to his wife.
Accordingly, we conclude that defendant’s confessions to Araceli and Mrs. Fuentes were properly admitted. There were sufficient superseding causes to purge the confessions from the initial taint of defendant’s earlier coerced confession to police.
B. The Exclusion of Mark Gastelum’s Confession
Defendant next contends the trial court erroneously refused to admit Mark Gastelum’s alleged confession to the crimes, as a statement against penal interest, pursuant to section 1230. Defendant maintains that the trial court, in concluding that the alleged confession of Gastelum was unreliable, erroneously relied on defendant’s confessions to police, Araceli, and Mrs. Fuentes, together with his knowledge of where he had dumped some of the items he stole from the Hernandez home. We agree with defendant that the trial court erroneously relied on defendant’s confession and knowledge of the whereabouts of the stolen items in concluding that Gastelum’s confession was unreliable. We conclude, however, that Gastelum’s statement was nevertheless unreliable based on the facts and circumstances surrounding the making of the statement.
1. Relevant Background
During the presentation of the defense case, the defense wanted to introduce evidence that Gastelum had confessed that he and a second person, Julio Hernandez, committed the murder, burglary, and robbery. Because Gastelum’s whereabouts were unknown, defendant wanted to introduce Gastelum’s statement under the declarations against penal interest exception to the hearsay rule. The trial court held a section 402 hearing to determine the admissibility of Gastelum’s statement.
At the hearing, Detective Nava testified that, on December 9, 2003, he was contacted by Lavasta Amis, who was at that time incarcerated in the Banning jail. Amis told Detective Nava that, around one week earlier, he had had a conversation with a fellow inmate, Mark Gastelum. Gastelum was the son of a woman whom Amis had dated. According to Amis, Gastelum told him that he and Julio Hernandez entered the Hernandez house to steal and ultimately stabbed and “hung the kid,” meaning Miguel Hernandez.
Detective Nava testified he was skeptical of Amis’s story because a newspaper article about Miguel’s murder had come out on the morning of December 9, the same day Amis contacted Detective Nava. Detective Nava also testified that Amis could not recall how his conversation with Gastelum arose. Furthermore, when Amis contacted Detective Nava, he indicated that, in exchange for his statement, he wanted an early release from jail. Detective Nava did not interview Gastelum because, as of December 9, he did not have any information concerning Gastelum’s whereabouts, and Gastelum could not be located using his last known address.
Defense investigator Larry Smith testified that he had located Amis at the time of trial in November 2006 and had recently interviewed him. According to Smith, Amis recalled talking to Detective Nava but did not remember what information he had given Detective Nava. Amis also remembered talking to Gastelum but could not remember whether Gastelum had told him about the murder or whether he had read about the murder in the newspaper. At the end of Smith’s interview, Amis signed a written memorialization of his conversation with Smith, indicating he did not recall the contents of his conversation with Gastelum because he had done a lot of drugs during the intervening years.
The trial court initially ruled that the defense had failed to exercise due diligence in attempting to locate Gastelum, because it had been in possession of information related to Gastelum’s statement for over two years but had not tried to locate him until after the trial had commenced. Accordingly, the trial court ruled that the defense had failed to demonstrate that Gastelum was unavailable. (§ 240, subd. (a)(1).)
Thereafter, the defense located Gastelum and the court held a further section 402 hearing. During the second hearing, Gastelum invoked his Fifth Amendment right against self-incrimination, and the trial court found he was unavailable. (§ 240, subd. (a)(1).) Amis then testified and stated he remembered having a conversation with Gastelum approximately one week before he contacted Detective Nava on December 9, 2003, but to “his knowledge” Gastelum did not confess to the murder. Amis also testified that, to his knowledge, he did not tell Detective Nava that Gastelum had confessed.
At the conclusion of the hearing, the trial court ruled that Gastelum’s alleged confession was unreliable. The court based its determination on defendant’s confessions to the crimes and defendant’s knowledge of the whereabouts of some of the property that had been stolen from the Hernandez home. Accordingly, the court ruled that Gastelum’s confession was inadmissible as a statement against penal interest. (§ 1230.)
2. Applicable Law and Analyses
Under section 1230, evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, so far subjected him to criminal liability that a reasonable man in his position would not have made the statement unless he believed it to be true. The hearsay statement must also bear sufficient indicia of trustworthiness or reliability. (People v. Duarte (2000) 24 Cal.4th 603, 614, citing People v. Shipe (1975) 49 Cal.App.3d 343, 354.)
In determining whether the statement bears sufficient indicia of trustworthiness or reliability, the “trial court must look to the totality of the circumstances in which the statement was made . . . .” (People v. Greenberger (1997) 58 Cal.App.4th 298, 334 (Greenberger).) The court in Greenberger listed several factors the court may consider in determining whether the statement is sufficiently trustworthy. These include “whether the declarant spoke from personal knowledge, the possible motivation of the declarant, [and] what was actually said by the declarant . . . .” (Ibid.) The court then stated that the court could also consider “anything else relevant to the inquiry.” (Ibid.)
Although the Greenberger court’s inclusion of this “catchall” factor could be construed as allowing a trial court to consider the totality of the record in determining the reliability of a hearsay statement against penal interest, that would be a misconstruction of the law. Immediately following the catchall phrase, the court cited to Idaho v. Wright (1990) 497 U.S. 805 [110 S.Ct. 3139, 111 L.Ed.2d 638]. There, the United States Supreme Court “agree[d] that ‘particularized guarantees of trustworthiness’ must be shown from the totality of the circumstances, but [found that] the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.” (Id. at p. 819, italics added.) The high court specifically rejected the trial court’s reasoning here, that the totality of the circumstances include evidence that corroborates or that is collateral to the hearsay statement, such as physical evidence or statements made by third parties. (Id. at p. 826.) Thus, in view of the Greenberger court’s cite to Idaho v. Wright, supra, it cannot be said that the Greenberger court intended to sanction the use of collateral or corroborating evidence in determining the trustworthiness of a statement against penal interest.
In the case at bar, the trial court ostensibly believed it could or was required to consider the entire record in determining the trustworthiness of Gastelum’s statement, because it ruled that the statement was inadmissible based on defendant’s confessions and defendant’s knowledge of the whereabouts of property taken from the Hernandez home. This was error. Defendant’s confessions and knowledge concerning the stolen property were not factors the trial court was allowed to consider in determining the trustworthiness, or the lack thereof, of Gastelum’s hearsay statement, because they were not part of the circumstances surrounding the making of Gastelum’s statement.
The facts of the case at bar are somewhat analogous to the facts of People v. Cudjo (1993) 6 Cal.4th 585 (Cudjo). There, the defendant was arrested and convicted of first degree murder. (Id. at p. 585.) During Cudjo’s trial, he sought to introduce evidence that his brother, Gregory, had confessed to the crime. (Id. at p. 604.) Initially, the police considered Gregory to be the primary suspect and arrested him for the murder. While at the substation following the murder, Culver, a longtime friend of Gregory, was also present and noticed Gregory pacing. (Ibid.) Culver then asked Gregory what was wrong and, in response, Gregory confessed. (Ibid.) At Cudjo’s trial, Culver was willing to testify but the trial court refused to admit the evidence and held that it lacked any indicia of reliability because of Culver’s lack of credibility and relationship to Gregory. (Id. at p. 606.)
On appeal, the reviewing court held that the trial court abused its discretion in refusing to admit Gregory’s confession. (Cudjo, supra, 6 Cal.4th at p. 607.) The court reasoned that the trial court had placed too much emphasis on whether Culver was credible or not, which was a question for the jury, and not enough attention on whether the circumstances surrounding Gregory’s hearsay statement indicated that it was sufficiently trustworthy to compensate for the lack of cross-examination, the absence of an oath, and the jury’s inability to observe Gregory’s demeanor. (Ibid.) The court added that in making its trustworthiness determination, a trial court “‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’” (Id. at p. 607.)
Applying this rationale, the reviewing court in Cudjo concluded that Gregory’s alleged hearsay statement was made under reliable circumstances since, “[b]y Culver’s account, Gregory made his statement spontaneously, while alone with an acquaintance, within hours after a murder for which Gregory, who had no alibi, was in custody as a prime suspect. Gregory tended to fit [another witness’s] description of the assailant, and much of the other evidence . . . was as consistent with Gregory’s guilt as with [the] defendant’s.” (Cudjo, supra, 6 Cal.4th at p. 607.)
Here, as in Cudjo, the trial court erroneously relied on extraneous factors in concluding that Gastelum’s hearsay statement was unreliable. But here, in contrast to Cudjo, the circumstances surrounding the making of Gastelum’s alleged hearsay statement nevertheless showed it was not sufficiently trustworthy to be admitted as a statement against penal interest. First, the defense presented no evidence concerning how the alleged conversation between Amis and Gastelum arose. This is in marked contrast to the spontaneity of Gregory’s alleged confession in Cudjo. (Cudjo, supra, 6 Cal.4th at p. 604.) Furthermore, there was no indication that Gastelum or his alleged cohort, Julio Hernandez, had any motive to burglarize the Hernandez home or murder Miguel. Nor was there any indication that either Gastelum or Julio Hernandez knew or had any relationship to defendant, Miguel, or any other members of the Hernandez family. For these reasons, Gastelum’s confession was untrustworthy and therefore inadmissible as a statement against his penal interest.
We observe that the trial court did not consider Amis’s credibility in excluding Gastelum’s alleged confession. This was proper. The matter of Amis’s credibility was for the jury to consider. (Cudjo, supra, 6 Cal.4th at p. 609.) As the court in Cudjo observed, a trial court may exclude the live testimony of a witness whom the court disbelieves only in “rare instances of demonstrable falsity.” (Id. at pp. 608-609 and cases cited; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1011-1013.)
C. The Admission of Evidence of Defendant’s Illegal Drug Use
Lastly, defendant contends the trial court erroneously allowed the prosecution to introduce evidence of his illegal drug use solely on the issue of his motive to commit the crimes. He maintains the evidence was not directly probative on the issue of motive and was unduly prejudicial. We conclude the evidence was properly admitted.
1. Relevant Background
Defendant, in presenting his case, questioned Araceli about defendant’s job. The trial court found that this line of questioning suggested to the jury that defendant had no reason to take property from the Hernandez home because he had a source of income. The trial court then allowed the prosecution, over defendant’s objection, to introduce evidence that defendant had been spending a lot of money on drugs and that defendant owned a glass pipe. The People also introduced evidence tending to show that defendant knew that Miguel had money in his closet and also knew that Miguel’s father had recently received money from a settlement. The trial court gave a limiting instruction, admonishing the jury that it could consider the evidence of defendant’s drug use solely on the issue of whether he had a motive to commit the crimes because he needed money.
2. Applicable Law and Analyses
All relevant evidence is admissible unless otherwise provided. (§ 351.) Relevant evidence is not inadmissible, for instance, if its probative value is substantially outweighed by the danger of undue prejudice. (§ 352.) When a trial court is asked to admit narcotics use into evidence, such drug use must have a “direct probative value to establish motive before its admission is permitted.” (People v. Felix (1994) 23 Cal.App.4th 1385, 1393 (Felix).) As a corollary, “evidence of an accused’s narcotics addiction is inadmissible where it ‘tends only remotely or to an insignificant degree to prove a material fact in the case . . . .’” (People v. Cardenas (1982) 31 Cal.3d 897, 906 (Cardenas).) On appeal, the reviewing court determines whether the trial court abused its discretion in admitting the evidence. (Cudjo, supra, 6 Cal.4th 585 at p. 607.)
Felix illustrates what a prosecutor must demonstrate in order to introduce evidence of a defendant’s drug use. The defendant, Felix, was convicted of burglarizing a family member’s home. Felix introduced testimony by his sister, who indicated that Felix had implied consent to enter her house at any time and consent to take any items he wished. (Felix, supra,23 Cal.App.4th at p. 1392.) To rebut this claim, the prosecution introduced the sister’s testimony that she was in fact distressed about her brother’s condition due to his drug use. (Ibid.)
The Felix court distinguished the facts of Felix from the facts of People v. Bartlett (1967) 256 Cal.App.2d 787 (Bartlett) and People v. Davis (1965) 233 Cal.App.2d 156 (Davis), both of which are cited and relied upon by defendant. The Felix court held that, unlike in Bartlett and Davis, the prosecution had established a direct connection between the burglary of the sister’s house and the defendant’s drug use. To establish the direct connection, the prosecution introduced testimony of the investigating officer who claimed that Felix admitted to burglarizing the home in order to buy drugs with the proceeds. In both Bartlett and Davis, the testimony linking the drug use to the crime was the mere observations of the arresting officers. (Bartlett, supra,at p. 790; Davis, supra,at pp. 157-158.) In both cases, the defendants appeared to be under the influence at the time of arrest, but in each case the time of arrest was several days after the commission of the crime. (Bartlett, supra,at p. 790; Davis, supra,at pp. 157-158.) Thus, the officer’s testimony in Felix was distinguishable from the facts of Bartlett and Davis since the connection was not made merely “by the opinion of an officer based on observations on an unrelated occasion.” (Felix, supra,23 Cal.App.4th at p. 1394.)
Defendant also relies on Cardenas, supra, 31 Cal.3d 897. Cardenas, like Bartlett and Davis, illustrates that evidence of a defendant’s drug use is inadmissible when it is too attenuated from the crime. In Cardenas, the defendant was convicted of the attempted robbery of a 7-Eleven store and assault with a deadly weapon. (Cardenas, supra, at pp. 901-902.) During trial, the prosecution was allowed to introduce extensive evidence that the defendant was a drug addict and needed money to support his habit. The arresting officer testified that when he arrested Cardenas several days after the crime, he had fresh needle marks on his arm and appeared to be under the influence of drugs. (Id. at p. 903.) The prosecution was also able to introduce evidence of a prior drug related arrest, Cardenas’s estimated per diem expenditure on drugs, and the fact that at one point Cardenas had been through a drug rehab program. (Ibid.)
The Cardenas court held that, given the extensive amount of drug use evidence introduced at trial and given the fact that the prosecution “only remotely” tied the drug use to the robbery charge, the trial court abused its discretion in admitting the evidence. (Cardenas, supra, 31 Cal.3d at pp. 906-907.) The connection in Cardenas was too remote since the prosecution’s contention that Cardenas was a drug addict and committed the crime to feed his habit was supported by little more than the fact that the defendant appeared to be under the influence several days after the commission of the crime.
Here, defense counsel elicited testimony from Araceli that defendant was working in an attempt to justify his absence from the trip to Ensenada. The trial court ruled that, based on that evidence, the jury could have reasonably inferred that defendant had a source of income and therefore had no motive to steal from the Hernandez house. Thus, the court ruled that the prosecution could introduce evidence of defendant’s drug use to show he needed money and therefore did have a motive to steal and commit the crimes. Furthermore, the evidence that defendant used drugs corroborated the People’s evidence that defendant was inside the Hernandez home and had made calls to an alleged drug dealer named Miguel.
Thus here, the prosecution made a direct connection between defendant’s drug use and his commission of the crimes, unlike the prosecution in Cardenas, Bartlett, and Davis. The direct connection is further illustrated by the following evidence: (1) defendant owned a glass pipe and had been a drug user prior to Miguel’s murder; (2) defendant worked at a fast food restaurant only a few hours a night but had been spending a lot of money on crystal methamphetamine; (3) defendant knew where money was located in the Hernandez home and knew where to find a key to the home; (4) during the day of the murder, a phone call was made from the Hernandez home to a suspected drug dealer named Miguel, and Miguel Hernandez had no reason to call that number nor was there any evidence he even knew the number; (5) defendant had called that same number 22 times earlier in the month; and, finally (6) Araceli believed defendant was under the influence of drugs when she saw him on the night of the murder.
Nor was the evidence of defendant’s drug use more prejudicial than probative. In this context, prejudicial effect is not synonymous with damaging. (People v. Morton (2008) 159 Cal.App.4th 239, 249.) Instead, prejudicial evidence mean evidence which, by its very nature, will evoke an emotional bias against the defendant and has little effect on the issues. (Ibid.) The prosecution’s line of questioning did not insinuate that defendant had a propensity to commit the murder. Rather, the line of questioning related solely to motive. The prosecutor’s first drug-related question to Araceli was, “Was there anything going on in the defendant’s life that was taking up a lot of his money?” The subsequent questions were few, unlike the parade of evidence in Cardenas, and only related to laying a foundation to show Araceli’s personal knowledge of defendant’s drug use. Immediately thereafter, the trial court gave a limiting instruction followed by the defense’s cross-examination. Given the probative value of defendant’s prior illegal drug use, the prosecution’s limited line of questioning, and the limiting instruction, it was not abuse of discretion for the trial court to admit limited evidence of defendant’s drug use and consequent need for money solely on the issue of whether he had a motive to steal and commit the crimes.
D. No Cumulative Error
Lastly, defendant contends the cumulative effect of the trial court’s errors in (1) admitting his confessions to Araceli and Mrs. Fuentes; (2) refusing to admit Gastelum’s hearsay confession; and (3) admitting the evidence of his illegal drug use, was prejudicial to him. We reject this claim. Because there is no individual error, there is no cumulative error. (People v. Richardson (2008) 43 Cal.4th 959, 1036.)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Miller, J.