Opinion
B227047
11-21-2011
THE PEOPLE, Plaintiff and Respondent, v. EUDORO GARY LUCATERO, Defendant and Appellant.
Jeffrey Scott Yanuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA048186)
APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas R. White, Judge. Affirmed.
Jeffrey Scott Yanuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Eudoro Gary Lucatero of one count of receiving stolen property in violation of Penal Code section 496, subdivision (a). The trial court sentenced appellant to the upper term of three years in prison, suspended execution of the sentence, and granted appellant three years of formal probation.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the grounds that: (1) the trial court erred in refusing to permit a defense witness to testify to a prior consistent statement by appellant, and (2) the prosecutor engaged in improper argument. Appellant also asks this court to independently review the sealed transcripts of the hearings held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS
Prosecution Evidence
On December 23, 2009, Efren Reyes left his home on 151st Street in Lake Los Angeles and went on vacation until April 3, 2010. He locked all doors and windows and gave no one except his daughter and his son, Sitlaly, permission to enter his home or to take any of his belongings.
On January 10, 2010, someone found Efren's checkbook on the street near his home and contacted Sitlaly. Sitlaly went to his father's house and found that it had been ransacked. He saw that the sliding glass door was slightly open, and the televisions were missing. The latches and handles on the sliding door were broken.
Sitlaly contacted police. He called his father for help in determining what had been taken. The missing items included a laptop, a palm pilot device, a 50-inch television, two smaller televisions, an electric guitar, bullets, and jewelry.
Deputies from the Los Angeles County Sheriff's burglary suppression team, investigated the burglary of Efren's home. As part of the investigation, they went to appellant's home on 152nd Street in Lake Los Angeles on February 2, 2010. Appellant, his brother, and his mother consented to a search of the home. Efren's house was visible from appellant's house. If one walked a footpath from one house to the other, the distance was about 980 feet.
Deputy Michael Grijalva asked appellant if he had a laptop computer and how he had come into possession of it. Appellant said he had obtained the laptop from a friend named Louis in a trade for stereo equipment and $100. Both Deputy Grijalva and Detective Jeffrey Williams asked appellant several times if he had obtained anything else from Louis. Appellant said he had not. When asked about the television in the living room, appellant then recalled that he had also purchased the television from Louis for the same $100. Deputy Grijalva detained appellant in his patrol car at that point because he believed appellant was beginning to be dishonest.
Deputy Grijalva learned from another deputy that a search of appellant's room yielded Efren's laptop, a palm pilot device, a box for the device, a shoe box containing a loaded firearm, and some ammunition for the firearm. The palm pilot device was not the same one that was stolen from Efren's house. Appellant then stated he had paid Louis $150 and his stereo equipment for the laptop, TV, and palm pilot. When asked how much he thought the property was worth, appellant said he believed the value was over $1,000. When Deputy Grijalva asked appellant if appellant thought the property was stolen, appellant said "yes," but that it was a good deal and he could not pass it up.
Appellant said he met Louis at the house of a friend named "Slick Rick." Appellant could not provide Slick Rick's or Louis's address or full name, and he could not provide a phone number for either individual. Deputy Grijalva testified that he asked appellant for Louis's description, and appellant said he was an adult Black male. He said Louis was in his 20's. He gave no further description.
Defense Evidence
Appellant's father, Francisco Lucatero, saw the television in his house approximately two weeks prior to February 2, 2010, the day appellant was arrested. He saw the laptop about one week prior to appellant's arrest. Appellant's mother, Ramona Lucatero, saw both the TV and laptop about two weeks prior to appellant's arrest. She did not see who brought the items to her house.
Appellant testified in his own behalf, denying that he ever broke into Efren's house and stating he did not know anyone in the Reyes family. He said he told the deputy that he bought the laptop for $100 in cash and $50 in stereo equipment. When the deputies told him that the laptop was stolen he felt "set up and trapped" by Louis. He met Louis at a barbecue at Slick Rick's house. He had known Rick for about a year at that time. Rick lived about three blocks from appellant, and appellant told Deputy Grijalva this. The deputy only asked him one time if he had bought anything else from Louis. Appellant was tired and nervous and did not think about the television. He said he had asked Louis at the barbecue if the laptop was stolen and Louis said, "of course not." Appellant believed him. Appellant asked for Louis's telephone number but Louis said he had none. Louis came over to appellant's with the television in the trunk of a car that another male was driving. Appellant had asked Louis to bring it over just so that appellant could look at it. Appellant offered "a couple more" stereo systems for the television. The systems were worth about $300 or $400. He and Louis carried the television into his house when no one was home. Appellant did not know that it was stolen.
The jury was deadlocked on the count charging appellant with burglary, and the trial court declared a mistrial as to that count. The trial court later dismissed the burglary count.
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Appellant told Deputy Grijalva that he knew the items were stolen only because Detective Williams had already told appellant they were stolen. Appellant never said he thought the items were worth $1,000—Deputy Grijalva told him that value. Appellant did not know their value. Deputy Grijalva threatened to put both of appellant's parents in jail, which made appellant scared. Appellant told Deputy Grijalva that there was a gun in his room, and he told the deputy he got it from a friend. Appellant said at trial that he got the gun from a tool box in his garage two or three days before his arrest. He lied because of the threat to his parents. Appellant described Louis as a male Black, 5 feet 11 inches in height, between 160 and 180 pounds and in his mid-20's. Appellant said he gave Deputy Grijalva all of this information.
DISCUSSION
I. Prior Consistent Statement
A. Appellant's Argument
Appellant contends the trial court committed prejudicial error when it excluded proffered evidence of a prior consistent statement he made to his father, Francisco. Appellant argues that the statement was admissible pursuant to Evidence Code section 791 and that his constitutional rights to due process of law and a fair trial were denied under the Fifth, Sixth, and Fourteenth Amendments when the evidence was excluded.
B. Proceedings Below
During defense counsel's direct examination of Francisco, the following exchange occurred:
"Q [by defense counsel]: Did you ask your son, Eudoro Lucatero, how the TV got into the house?
"A: That he
"[Prosecutor]: Your Honor, I am going to object as to hearsay.
"THE COURT: Just one moment. Sustained.
"[Defense counsel]: But it is a prior consistent
"THE COURT: Sustained. No speaking objections."
At a subsequent sidebar, the trial court suspended Francisco's testimony when it appeared he might incriminate himself with respect to his possession of the gun found in appellant's room. Defense counsel took the opportunity to tell the court that he disagreed with the court's earlier ruling sustaining the prosecutor's hearsay objection, as quoted ante. Counsel's offer of proof was that it was a prior consistent statement.
C. Relevant Authority
"In general, hearsay evidence is inadmissible. Evidence Code section 1200 provides, in pertinent part: '(a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] (b) Except as provided by law, hearsay evidence is inadmissible.'" (Correa v. Superior Court (2002) 27 Cal.4th 444, 451.)
Evidence Code section 1236 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." (Italics added.)
Evidence Code section 791 states: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Italics added.) Absent an express or implied charge that a witness's trial testimony is recently fabricated or influenced by bias or improper motive, evidence of a prior consistent statement is not admissible. (People v. Johnson (1992) 3 Cal.4th 1183, 1219, fn. 6; People v. Frye (1985) 166 Cal.App.3d 941, 950.)
We review a trial court's ruling on an evidentiary question for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955; People v. Welch (1972) 8 Cal.3d 106, 117.) A trial court's exercise of discretion will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65; see also People v. Waidla (2000) 22 Cal.4th 690, 725.)
D. Evidence Properly Excluded
The plain language of Evidence Code section 791 leaves no doubt that a prior consistent statement is admissible only in relation to a witness's testimony. As the Law Revision Commission comments explain: "Section 791 sets forth the conditions for admitting a witness' prior consistent statements for the purpose of supporting his credibility as a witness." Thus, the witness, such as appellant, must first give his or her testimony before a prior consistent statement can be offered to support his or her credibility. "'Testimony' is generally described in both statutory and decisional law as oral statements made by a person under oath in a court proceeding. . . . 'All evidence is not testimony. Testimony is limited to that sort of evidence which is given by witnesses speaking under oath or affirmation [citation] . . . .' [Citations.]" (People v. Belton (1979) 23 Cal.3d 516, 524.) In People v. Frye, supra, 166 Cal.App.3d, for example, one of the grounds for affirming the exclusion of a proffered prior consistent statement was that the declarant, Leffingwell, "was not a witness." (Id. at p. 950.)
Appellant asserts, however, that "it was known by all parties that appellant would testify," and he "did testify in conformity with his prior consistent statement of innocence." Appellant contends that there is no timing requirement as to when the witness must testify under section 791—only a timing requirement of when the prior consistent statement was made, which must have occurred before the motive to fabricate arose. Contrary to appellant's assertions, the testimony of Deputies Grijalva and Williams, which expressed their negative opinions of appellant's veracity when they visited his home, was not a sufficient basis for allowing Francisco to testify regarding appellant's prior consistent statement. Until appellant actually took the stand, no one could be certain he would testify. And until he completed his testimony, no one could be certain of its contents. "The hearsay statement must have been made by the witness whose in-court testimony has been challenged by impeachment evidence. And the hearsay statement must be consistent with the witness' in-court testimony (not contradictory or bearing on issues to which the witness did not testify)." (Wegner, et al. Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2010) ¶ 8:1352, p. 8D-87, italics added.) Assuming appellant's father would repeat what appellant said about where he acquired the television (that he bought it from Louis), appellant's father should have been called to the stand after appellant testified. Appellant offers no authority to support his position. In all of the cases he cites, the consistent statements were offered after the declarant testified. (See People v. Smith (2003) 30 Cal.4th 581, 598, 629-630; People v. Noguera (1992) 4 Cal.4th 599, 628; People v. Hayes (1990) 52 Cal.3d 577, 608-609; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1303, 1307.)
In any event, any error in excluding this evidence, assuming it was a consistent statement that Francisco was about to utter, was harmless. The evidence of appellant's guilt was strong. His conduct and statements on the day the deputies went to his house were indicative of guilt. Appellant claimed he had bought nothing but the laptop from Louis until he was specifically asked about the television. Appellant was clearly evasive in his responses to the detectives' questions. Appellant's admissions to Deputy Grijalva, which the jury apparently believed, were incriminating. Appellant's testimony that he went to a barbecue at Rick's house and that Rick lived three blocks away rendered incredible appellant's testimony that he did not know how to contact Rick. Appellant's lack of knowledge about how to contact Louis engendered similar suspicions. Moreover, it is not likely appellant would have admitted to his father that he brought stolen goods into the house. Therefore, a statement to his father that he bought the television and laptop from Louis would not have carried great weight with the jury. The jury was instructed to consider any bias caused by a personal relationship of a witness with someone involved in the case or a personal interest in how a case is decided. (CALCRIM No. 226.) Furthermore, appellant admitted that he lied to the police about where he had obtained the gun, and the jury was instructed that whether a witness admitted to being untruthful was a factor to consider in evaluating his or her testimony. (CALCRIM No. 226.)
Finally, the exclusion of appellant's prior statement did not violate his right to put on a defense under the Sixth and Fourteenth Amendments of the United States Constitution. (See Crane v. Kentucky (1986) 476 U.S. 683, 690.) The ordinary rules of evidence generally do not infringe on this constitutional right, even where a trial court has erred in exercising its discretion to exclude evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 611; accord, People v. Jones (1998) 17 Cal.4th 279, 305.) This rule specifically applies to hearsay provisions, such as Evidence Code section 791. (See, e.g., People v. Morrison (2004) 34 Cal.4th 698, 724-725; People v. Ramos (1997) 15 Cal.4th 1133, 1178-1179.) Accordingly, the exclusion of the evidence was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Sakarias (2000) 22 Cal.4th 596, 630; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Alleged Prosecutorial Misconduct
A. Appellant's Argument
Appellant contends that the prosecutor's argument to the effect that there was "not one single piece of evidence . . . that corroborated the defendant's story" compounded the error discussed in the previous section. The argument constituted misconduct because the prosecutor caused the exclusion of appellant's prior consistent statement and then benefitted from its own efforts to keep out evidence by a deliberate or mistaken misstatement of fact.
B. Proceedings Below
The prosecutor argued that the defense showed an "absolute failure to call logical witnesses," stating, "Where is Louis? Fine. Louis has no contact information. Can't find him. Where is Slick Rick? Oh, we know Slick Rick lives only three blocks away. Ladies and Gentlemen, the defendant is charged with three felonies. He couldn't walk three blocks—three blocks—to bring in Rick? Where is anyone that could corroborate his story? There isn't anyone because it is a lie. There is not one single piece of evidence that the defense gave that corroborates the defendant's story. Not one. Not one. The defendant's mom testified. She was incapable of corroborating his story. She stated property just appeared in the house. She has no idea how it got there. His Dad testified. Same thing. Couldn't corroborate the defendant's statements—story at all. Same thing with him. Property just appeared in the house. Didn't know where it came from. What about his brother Steve? Didn't call him. What about Louis? Didn't call him. What about Rick? We know where he is. Didn't call him. He didn't even call Rick to corroborate the fact that there was a barbecue. A simple fact that would in any way corroborate his story at all. And he had the ability to do it, and he didn't do it because it is a lie. He could not do it because it is not true, and there exists zero corroboration. It could not be found. That is why it wasn't here."
C. Relevant Authority
"The applicable federal and state standards regarding prosecutorial misconduct are well established. '"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "[W]e 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
The general rule requiring assignment of misconduct and a request for jury admonishment does not apply if a defendant's objection or request for admonition would have been futile or would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) It also does not apply when the trial court promptly overrules an objection, resulting in the defendant having no opportunity to request an admonition. (Ibid.)
D. No Misconduct
At the outset, we disagree with respondent's argument that appellant forfeited this issue. Just before the prosecutor made the argument quoted ante, defense counsel objected to the prosecutor's argument regarding appellant's failure to use his subpoena power to bring in any witness he chose. Defense counsel objected on the ground that the prosecutor was misstating the burden of proof. The trial court responded by telling the jury that it had an instruction on the burden of proof, and that the People had to prove each and every element beyond a reasonable doubt. If there was any conflict, the jury members were to refer to their memories and notes to clear up the conflict. The prosecutor then proceeded with the above-quoted argument. Given the trial court's response to his objection, defense counsel did not forfeit the issue on appeal.
We conclude, however, that the prosecutor's argument did not constitute misconduct. A prosecutor may comment on a defendant's failure to call logical witnesses. (People v. Chatman (2006) 38 Cal.4th 344, 407; see also People v. Turner (2004) 34 Cal.4th 406, 419; People v. Wash (1993) 6 Cal.4th 215, 262-263.) "When the defendant has taken the stand . . . and offered a[] . . . defense in which he identifies other persons who could support his testimony, and those witnesses are available and subject to subpoena, there should be no question but that comment [on the failure to call those witnesses] is appropriate and permissible." (People v. Ford (1988) 45 Cal.3d 431, 447.) In this case, appellant took the stand and offered a defense in which he identified other persons who could support his testimony. Therefore, the prosecutor's comment on his failure to call them as witnesses did not constitute misconduct. Although it is improper for a prosecutor to comment on a defendant's failure to call a logical witness whose unavailability to testify has been established, here there was no showing of unavailability. (See People v. Ford, supra, at pp. 443-448 [an unavailable witness is one who has asserted a privilege or the right against self-incrimination, whose unavailability has been the subject of a stipulation, or whose unavailability has been otherwise established before the trial court].) And although the prosecutor objected to the admission of appellant's statement to his father, there was no effort by the defense to ask about the statement after appellant testified. Moreover, Francisco's mere repetition of appellant's statement that he bought the property from Louis would serve as weak corroboration that this is what actually occurred.
The decision in People v. Varona (1983) 143 Cal.App.3d 566 (Varona), cited by appellant, does not compel a different result. In Varona, the trial court made an erroneous evidentiary ruling by excluding admissible evidence about the complaining witness that was critical to the jury's evaluation of her credibility. The reviewing court found misconduct because the prosecutor had argued not only a lack of evidence to support the defense position, even though the defense was ready and willing to produce such evidence, but had also argued a falsehood by telling the jury that the contrary of what the evidence would have shown was true. (Id. at p. 570.) In the instant case, the prosecutor did not argue a falsehood by stating that appellant had failed to call logical witnesses, and he did not improperly capitalize on an erroneous evidentiary ruling. On the contrary, "[b]ecause the prosecutor's argument constituted fair comment on the evidence, following evidentiary rulings we have upheld, there was no misconduct and, contrary to defendant's claim, no miscarriage of justice." (People v. Lawley (2002) 27 Cal.4th 102, 156.)
Moreover, the jury here was fully instructed on the prosecution's burden of proof with CALCRIM No. 220. In addition, the jury was told that neither side was required to call all possible witnesses and that the attorneys' statements during argument were not evidence. (CALCRIM Nos. 300, 222.)
In sum, the prosecutor's comments did not constitute "'"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury,'"'" nor did they "'infect the trial with such unfairness as to make the conviction a denial of due process." (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Appellant's argument is without merit. III. Pitchess Motion
Appellant requests an independent review of the sealed transcripts of the hearings on April 8, 2010, and May 5, 2010, which were held pursuant to Pitchess, supra, 11 Cal.3d 531. Appellant asks this court to determine if the trial court ordered all discoverable documents disclosed to the defense.
Upon a showing of good cause, a defendant has a right to discover information from a police officer's personnel file that is relevant to the proceedings against the defendant. (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227; Evid. Code, §§ 1043, 1045, subd. (a).) We review the court's ruling on a motion to discover personnel records for abuse of discretion. (See People v. Samayoa, supra, 15 Cal.4th 795, 827.)
On April 8, 2010, the trial court held an in-camera hearing with respect to Deputy Grijalva on issues of dishonesty, fabrication of evidence, and material omissions. On May 10, 2010, the trial court held an in-camera hearing with respect to Deputy Williams on the issue of dishonesty. After each hearing, the trial court stated in open court that discovery regarding the deputies was forthcoming.
We conclude that the trial court properly exercised its discretion in this case. The trial court's findings during its review, as reflected in the sealed transcript, are sufficient to permit appellate review of its rulings. (See People v. Mooc, supra, 26 Cal.4th at pp. 1229, 1232.) The transcripts of the in-camera hearings contain a number for each complaint filed against each officer, the type of complaint, a summary of the events surrounding each complaint, and the trial court's ruling as to the relevance of the complaint to the issues on which discovery would be allowed. Our independent review reveals no abuse of discretion in the trial court's rulings concerning disclosure.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______, P. J.
BOREN
We concur:
______, J.
DOI TODD
______, J.
ASHMANN-GERST