Opinion
G031801.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. HARVY BENIGNO OCHOA, Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Douglas C. S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Introduction
Defendant Harvy Benigno Ochoa was convicted of assault with a deadly weapon, receiving stolen property, and burglary. Defendant broke into two parked vehicles and attacked the owner of one of the vehicles with a screwdriver when the owner confronted him. On appeal, defendant argues the trial court erred in refusing to admit a witnesss out-of-court statement that she could not see anything in defendants hand when he pushed the victim. Defendant contends this statement was a declaration against penal interest, and fell within an exception to the hearsay rule. (Evid. Code, § 1230.) For the reasons explained below, we affirm.
The witnesss statement did not fall within the penal interest exception to the hearsay rule under People v. Duarte (2000) 24 Cal.4th 603, 610-611. The statement was neither against the witnesss penal interest, nor sufficiently trustworthy to justify its admission.
Admission of the statement would not have resulted in a reasonable probability of a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Defendant also argues the trial court abused its discretion in initially refusing to admit the witnesss statement based on lack of relevance. But the court determined the statement was relevant, and did not base its ruling on lack of relevance.
Facts and Procedural History
On the evening of January 18, 2002, Henry Bui, a resident of the Tres Vidas apartment complex in Westminster, parked his Toyota Tacoma in his assigned carport. Bui locked the truck and activated the alarm. The next morning, shortly after 8:00 a.m., Bui left his apartment. As he walked through the parking lot to his truck, Bui heard a car horn honking. Directly across from his truck, Bui saw a car with a man and a woman inside, honking the cars horn.
Bui proceeded to his truck. As he did so, he saw the two people in the car look at him and again honk the horn. As Bui approached his truck, he saw the drivers side door was half open. Defendant was sitting in the drivers seat of Buis truck. Bui yelled at defendant, "What[] the hell are you doing in my car?" Defendant jumped out of the car and came at Bui with a flathead screwdriver with a six-inch blade. Although defendant tried to strike Bui with the screwdriver, Bui blocked the blow and punched defendant in the face. Bui was cut by the screwdriver on his left ring finger. Defendant ran out of the apartment complex and jumped over the security gate.
The people who had been honking the horn started their cars engine and drove out of the parking lot. As they passed Bui, they both told him they were not with defendant.
Officer William Eifert of the Westminster Police Department arrived at the scene shortly thereafter, at approximately 8:12 a.m. Eifert noted the locking mechanism on the drivers side door of Buis truck was removed; there was a blank hole where it had either been pushed in or taken out. Eifert testified a screwdriver or similar device had been used to gain entry to the truck. Eifert also testified he observed a half-inch laceration near the first knuckle of Buis left ring finger.
At approximately 8:30 a.m., police directed Karen Dugas, another resident of the Tres Vidas apartment complex, to her car, which was parked in the same parking lot as Buis truck. The passenger side window had been broken, the convertible top had been slashed, and the radio, her ATM card, and a pair of scissors were missing.
The same morning, Detective Cameron Knauerhaze of the Westminster Police Department contacted defendant on a street south of the Tres Vidas apartment complex. Defendant was sweaty and out of breath, his clothing was disheveled, and his hand was bleeding. Knauerhaze searched defendant, and found two screwdrivers in his right front pants pocket and a credit card belonging to Dugas in his left front pants pocket.
Eifert then escorted Bui to the intersection where Knauerhaze had detained defendant. Bui identified defendant as the man who had been inside his truck.
Defendant was charged with four counts: (1) one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); (2) one count of receiving stolen property (Pen. Code, § 496, subd. (a)); and (3) two counts of burglary (Pen. Code, §§ 459, 460, subd. (b)). The information alleged defendant had served two prior prison terms and had failed to remain free of prison and commission of an offense resulting in a felony conviction for five years within the meaning of Penal Code section 667.5, subdivision (b).
A jury found defendant guilty of all four counts. Defendant waived his right to a jury trial on the prior allegations; the court found both prior allegations to be true. Defendant timely appealed.
DISCUSSION
I.
An Out-of-court Statement Offered by Defendant
Was Not Within Any Exception to the Hearsay Rule.
Defendant challenges the trial courts refusal to admit an out-of-court statement by witness Elba Garcia as a declaration against her penal interest. (Evid. Code, § 1230.) We review the courts decision for abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 607.)
Garcia was called to the stand outside the presence of the jury. Garcia invoked her rights under the Fifth Amendment to the United States Constitution as to all questions posed by counsel, and advised the court she would invoke her rights in response to any question regarding the incident.
Defendant made an offer of proof of testimony from his investigator regarding a statement Garcia made to the investigator approximately two weeks before trial as follows. On the morning in question, Garcia saw defendant in Buis truck. Contrary to Buis testimony, Bui opened the drivers side door; defendant did not throw the door open. Garcia saw defendant lunge out of the truck and push Bui with both hands. Garcia did not see anything in defendants hand because it was dark and she could not see clearly.
The court found the investigators testimony regarding Garcias statement was inadmissible hearsay not within any exception. Defendant argues the statement was against Garcias penal interest and therefore within the hearsay exception of Evidence Code section 1230, which provides: "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 the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
A three-prong test applies to hearsay statements alleged to be within the declaration against penal interest exception. "The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarants penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Duarte, supra, 24 Cal.4th at pp. 610-611.)
Because Garcia invoked her rights under the Fifth Amendment and refused to testify, she was unavailable as a witness. (Evid. Code, § 240, subd. (a)(1).)
The portions of Garcias statement that defendant sought to offer were not against her penal interest. Defendant only sought to offer Garcias statement that defendant pushed Bui with two hands and Garcia could not see anything in defendants hand at the time because it was dark.
In People v. Duarte, supra, 24 Cal.4th 603, 613, the Supreme Court concluded the trial court erred in admitting statements made by a codefendant that "were not specifically disserving to [the codefendant]." Rather, these statements suggested the codefendant shot at the victims home "by mistake," thinking he was shooting at the home of someone else in retaliation for a previous shooting. (Ibid.) The statements were both inculpatory and exculpatory in certain respects.
Defendant argues Garcias statement could be construed as against her penal interest because it placed her at the scene of the crime with defendant. Did Garcias statement meet the standard of "specifically disserving" her penal interest? No, for her mere presence at the scene of the crime is not itself a crime. In People v. Phillips (2000) 22 Cal.4th 226, the defendant shot two victims who had apparently been involved in an illegal business transaction with the defendant. (Id. at pp. 230-231.) At trial, the defendant sought to admit testimony from a former girlfriend of Richard Graybill, who had been an acquaintance of the defendant and had died before trial. (Id. at pp. 234-235.) The defendant made an offer of proof that the former girlfriend would testify Graybill told her a business deal "`had gone sour" and "`there was a shoot-out." (Id. at p. 235.) The trial court refused to admit the hearsay testimony, and the Supreme Court agreed, primarily because there was no evidence Graybill had been present when the victims were shot, rather than simply having heard about it later from the defendant. (Id. at p. 237.) The Supreme Court noted, however, "[t]he statement was against defendants penal interest, but not Graybills. Defendant argues it was against Graybills penal interest because `it put him at the scene of the shooting. . . . [M]ere presence at a crime scene is not a crime." (Ibid.)
We next consider whether Garcias statement to the investigator was sufficiently trustworthy. "To determine whether the declaration passes the required threshold of trustworthiness, 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 declarants relationship to the defendant. [Citation.]" (People v. Cudjo, supra, 6 Cal.4th at p. 607.) Analysis of each of these factors supports the conclusion Garcias statement was not sufficiently trustworthy. The statement was made to an investigator hired by defendant almost seven months after the crime, and less than three weeks before trial. Garcia was defendants girlfriend at the time the crime was committed; even if they were no longer together at the time of trial, their previous relationship gave Garcia an incentive to downplay defendants guilt.
II.
Any Error in Excluding the Out-of-court Statement Was Harmless.
Any error in the failure to admit Garcias hearsay statement is subject to the harmless error standard. (People v. Duarte, supra, 24 Cal.4th at pp. 618-619; People v. Watson, supra, 46 Cal.2d at pp. 836-837.) Bui testified defendant attacked him with a screwdriver. Bui suffered a cut on his finger consistent with his testimony that he fended off defendants attack. A screwdriver similar to the one Bui described was found in defendants pants pocket shortly after the incident.
Even if Garcias statement had been admitted, it would not have resulted in a reasonable probability of a more favorable result to defendant. (People v. Watson, supra, 46 Cal.2d at p. 836.) Garcia did not deny that defendant had a screwdriver in his hand. Her statement was only that she could not see whether defendant had anything in his hand. Defendant suffered no prejudice as a result of the trial courts refusal to admit Garcias statement.
III.
The Trial Court Determined the Out-of-court Statement Was Relevant.
Defendant also argues the trial court erred in determining Garcias statement was irrelevant. Although the court initially stated Garcias statement was irrelevant or of limited relevance, the court ultimately decided the statement was relevant: "I think my feeling has changed to be honest with you. I think the evidence is relevant because what you said was that she would say that there was a push. I think a push is different than an assault with a screwdriver. So I think the evidence is relevant." Because the trial court did not base the exclusion of the statement on any lack of relevance, we do not consider the issue.
DISPOSITION
The judgment is affirmed.
We concur: SILLS, P.J. and RYLAARSDAM, J.