Opinion
No. A147719
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CARL ANTHONY PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151835-6)
Defendant Carl Anthony Phillips appeals from a judgment of conviction, entered after a jury found him guilty of two counts of auto burglary. Defendant argues the trial court erred by admitting prejudicial propensity evidence that he had stolen items from a vehicle in an uncharged prior act the previous year, and by admitting hearsay statements by witnesses who identified him as the burglar in the present case. We conclude the trial court acted within its discretion to admit the uncharged prior act evidence and reject defendant's hearsay arguments because either the evidence was not hearsay or, assuming it was, its admission was harmless. Therefore, we affirm the judgment.
BACKGROUND
In an October 2015 information, the Contra Costa District Attorney alleged defendant had committed two counts of second degree burglary of a vehicle (Pen. Code, § 459), on July 19, 2015, and June 19, 2015. The information also alleged defendant had six prior convictions (id., § 667.5, subd. (b)).
At trial, Jinnina Knox testified that in the very early morning of July 19, 2015, at about 12:30 a.m., she was sitting in her car outside her residence on a residential block in Richmond, California, having just arrived home from work. She saw an African American male across the street, short and wearing what looked like a black and white Raiders football jacket and jeans, removing items from the white SUV belonging to one of Knox's neighbors and putting them on the sidewalk. She also saw him go through a big brown box on the ground. Knox could not see his face, but knew from his height and build that he was not her neighbor and became suspicious. She made a 911 call to police, having been previously robbed of $3,000 from her own car.
Knox further testified that, after going into her house, she saw a Caucasian woman who Knox could see clearly come walking down the street after the male signaled her. Knox saw the woman stop, go back and get a small car, and drive up to the man; she saw the two then get into the front of the car and the car drive off. At first she testified the car was brown, perhaps a Honda, Toyota or Acura, but, after listening to a recording of her phone call to the police, she recalled the car was a gold Honda. Knox also recalled seeing a second African American male sitting in the car's rear seat.
Knox testified that she got into her car and followed the Honda, which was being driven by the woman, who was blond. She acknowledged that she did not mention the blond woman in her 911 call that night, referring only to two African American males. When she heard police sirens, she drove past the Honda, noting as she did so that the driver was the same woman she had previously seen.
Other testimony established that police responding to Knox's 911 call saw a gold Honda that matched the description of the reported suspects' vehicle. It was parked near the site of the reported vehicle burglary. Defendant was seated in the front passenger seat with his legs extending out of the car, and a White female was on the sidewalk next to the Honda. Upon seeing an officer, defendant ducked back into the car and the female started to walk away. The two were detained. Police found nothing of evidentiary value in the Honda. Defendant was in possession of a five-inch knife that appeared to police to possibly have caused the damage to the Pathfinder's door lock. An officer testified that he did not attempt to obtain fingerprints from the Pathfinder because he did not believe he could obtain valid prints.
The officers and suspects returned to Knox's block. An officer who arrived at the scene testified that Knox indicated that they had arrested the correct suspects, saying, " 'That's them. That's them,' " and identifying defendant by his build and jacket. Knox at first testified that she did not recall saying, " 'Those are the people that was in the car,' " but recalled identifying the car. Later, she testified further about what she told police: "Yeah, I was like that's—'That's them. That's them,' you know. 'That's them.' " Because . . . I see . . . that same Caucasian lady that was in the car, that was her that they had detained." She said that she identified the male suspect to police because, although she had not previously seen his face, she recognized his body figure and the jacket he was wearing.
At trial, Knox repeatedly responded to questions pressing her for details of what she had observed on July 19 by referring to the fact that she was a daily marijuana smoker, implying that this practice affected her memory. She also testified that on the day of the incident she smoked marijuana before work only and no longer felt the drug's effect by the time she returned home that night.
Jesse Walker was the neighbor who owned the vehicle—a Nissan Pathfinder sport utility vehicle (Pathfinder)—from which items were removed on July 19. He testified that he locked and parked his Pathfinder next to his house earlier that night. Police knocked on his door early on the morning of July 19 and told him his Pathfinder had been burglarized. He inspected the Pathfinder and saw the front passenger side door lock was ajar and bent, the Pathfinder's inside was disturbed and a number of construction materials and tools that had been inside were outside the Pathfinder. Nothing was missing, however.
Walker testified that police showed him two suspects who had been detained, a male and a female. Walker told police the male—who was defendant—had broken into his Pathfinder a month before, on June 19, 2015, accompanied by the female detainee. Walker based this identification on his previous review of video from his surveillance system of that earlier incident. Walker testified that earlier that same evening, he parked and locked his Pathfinder on the street next to his house. About 2:00 a.m., awakened by his barking dog, he looked out the window and saw a man wearing a Dallas Cowboys jacket walking away from the Pathfinder. Walker went back to sleep. The next morning, he found the Pathfinder's driver's side door ajar and some of his construction tool sets missing from inside the Pathfinder. When he could not start the Pathfinder, he inspected further and discovered wires had been cut from around the driver's side front tire.
Walker testified that he checked his surveillance video system and found video showing that around 12:55 a.m. two individuals on bikes rode towards his vehicles. One was an African American male approximately 5 feet 8 inches tall who came towards Walker's Pathfinder and the other was a White female who came towards his other vehicle, a Crown Victoria. The female pulled the Crown Victoria's door handles, found they were locked and crossed the street. The male checked the Pathfinder's doors and found they were also locked. The male went underneath the vehicle for 25 minutes, emerged, crossed the street, returned, entered the Pathfinder and removed items, which the two took away from the scene. Walker saw the male's face numerous times on the video and identified him as defendant, but he could not see the female's face. Walker did not contact the police about the incident.
Walker further testified that after speaking to police on July 19, 2015, he checked his surveillance system video for footage from that day. He found video showing defendant walking towards his Pathfinder, being in the Pathfinder, and bringing construction materials out of the Pathfinder and placing them on the curb. Walker also saw on the video that a gold Honda passed by his home a few times, which car he saw later when the police arrived.
Walker said he watched his video of the June incident about 60 times and of the July incident about 15 times. He did not give the police any of the video footage because he accidentally erased it all when trying to retrieve video after the July incident.
Walker also testified that he told a prosecutor at the district attorney's office that he had seen someone moving boxes from his vehicle to the front of his house in his July 2015 video. The parties stipulated that Tran had "a few in-person communications with Jesse Walker related to his preliminary hearing testimony [and] . . . Mr. Walker never told Mr. Tran anything about having seen video surveillance from July." Walker also testified that he had been convicted of an attempted grand theft in 2001.
As we will discuss further, the prosecution was also allowed to present uncharged prior act evidence that defendant stole items from a vehicle in September 2014 leading to his conviction for misdemeanor theft. The court admitted the evidence for its relevance to the question whether defendant intended to steal when he entered Walker's Pathfinder in June and July 2015. The court instructed the jury that its consideration of this evidence was limited to the issue of intent.
The jury found defendant guilty of both vehicle burglary counts. The trial court sentenced him to a prison term of two years and eight months, consisting of the midterm of two years on count 1, and a consecutive term of eight months (one third the midterm) on count 2. The court dismissed the sentencing enhancements at the prosecutor's request. Defendant filed a timely notice of appeal.
DISCUSSION
I.
The Uncharged Prior Act Evidence
Defendant first argues the trial court's admission of evidence that he stole items from a vehicle in September 2014 as relevant to the issue of intent violated Evidence Code section 1101, Evidence Code section 352 and his federal constitutional due process rights. We disagree.
A. The Relevant Proceedings Below
Defendant was charged with two counts of second degree burglary of a vehicle in violation of Penal Code section 459. Accordingly, for each count the prosecution was required to prove he broke into a vehicle with the requisite intent. As part of its efforts to prove this intent, the prosecution moved in limine under Evidence Code section 1101, subdivision (b) to admit evidence that he attempted an auto burglary on March 23, 2015, and stole items from a vehicle on September 23, 2014. The defense brought its own in limine motion to exclude this evidence based on Evidence Code section 1101, Evidence Code section 352 and various cases.
Penal Code section 459 states in relevant part: "Every person who enters any . . . vehicle as defined by the Vehicle Code, when the doors are locked, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
In its brief in support of its motion, the prosecution summarized Knox's and Walker's observations on July 19, 2015, and Walker's review of his surveillance video for June 19, 2015. Its summary, while not as detailed, was consistent with Knox's and Walker's later trial testimony. The prosecution then asked the court to admit evidence of two prior uncharged criminal acts by defendant.
The prosecution's first proffered uncharged prior occurred on September 23, 2014. Richmond police officers were dispatched to a Richmond home at 3:57 a.m. upon a report that an auto burglary had just occurred. A woman told the officers she had parked her Honda Odyssey in front of her home the evening before. When her husband left for work, he found the Odyssey's left side sliding door in an open position. The woman discovered that a pair of Ray-Ban sunglasses and two sunglass cases were missing from the Odyssey's glove compartment. Officers viewed the woman's surveillance video, which showed a suspect exit a van and approach the Odyssey. Officers later saw a matching van and stopped it. Defendant was in the van. When he exited, the officers saw a pair of Ray-Ban sunglasses on the driver's floorboard, and subsequently found the two missing sunglass cases in a backpack in the van. Defendant admitted entering the Odyssey to check for loose change, and taking the sunglasses and eyeglass cases from the Odyssey's glove compartment.
The prosecution's second proffered uncharged prior occurred on March 23, 2015. At about 2:50 a.m., Richmond officers went to a residence to investigate a report of an auto burglary in progress. A witness reported seeing defendant attempting to pry open the passenger door of a neighbor's vehicle. Officers observed defendant run behind a residence holding a flashlight and noticed signs that force had been applied to the front passenger window of the vehicle.
The prosecution argued all of this uncharged prior act evidence should be admitted under Evidence Code section 1101, subdivision (b) to prove defendant's identity in the present case, his intent to steal and act under a common scheme or plan, and that he did not act out of mistake. They argued the evidence was more probative than prejudicial under Evidence Code section 352 because it was not inflammatory and would not take a lot of time to present.
At the hearing on these motions, the trial court said it was not inclined to admit evidence of the March 23, 2015 incident because the evidence was "equivocal" and did not include a conviction. It was inclined to admit evidence of the September 23, 2014 incident because defendant admitted taking items, was convicted of a misdemeanor and acted under circumstances similar to the present case.
Defense counsel argued all of the uncharged prior act evidence was inadmissible for all but impeachment purposes because the burglar's identity was the only real disputed issue in the case. The court and the parties discussed the evidence and the law in considerable detail. Just before recessing to attend to another matter, the court stated it was still inclined to admit the September 23, 2014 evidence in the People's case-in-chief.
Later that day, the defense filed a supplemental motion to exclude the uncharged prior act evidence. It contended the evidence was not so similar to the present case as to be admissible to show identity, the only fact in dispute; could not be admitted to prove intent because intent was beyond dispute, citing People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez); and was of "remote probative value" and posed a "substantial risk of undue prejudice" to defendant.
The next day, the court stated that it thought the evidence of the July 19 incident suggested "some ambiguity" regarding what the persons in or at the Pathfinder were doing, in that "somebody could construe their conduct in a way that did not necessarily reflect that those persons intended to steal something or, in fact, had not stolen something." Defense counsel responded that, while "[t]here may have been a number of different explanations for an individual having broken into the car . . . , it seems clear that the [two persons alleged to be] breaking into [the] car . . . [had] taken items out of it. Even if they don't leave with the items, that would be enough for those people to be ostensibly guilty of burglary."
The prosecutor contended she had the burden to show defendant intended to steal upon entering the Pathfinder whether or not the defense contested the issue because the "jury [could] still make an inference that the person who entered that vehicle didn't have the intent to steal. We have here a vehicle that was gone through, boxes on the outside. [¶] All it would take was an inference even if defense doesn't make an argument . . . that maybe the person was breaking in to have a place to sleep . . . [or] to find property that was their own. There's a thousand inferences . . . , and it leaves me crippled and cut off at the legs because I'm unable to prove intent simply because defense counsel doesn't make that an issue. It is an issue."
The court was skeptical of the prosecutor's argument because it suggested uncharged prior act evidence would be admitted in "pretty much every case." After defense counsel indicated he would concede the intent issue, the court said it would exclude the evidence from the People's case in chief if the defense conceded intent in his closing statement, although it was "a close question."
The next day, the court, after receiving more argument from counsel and conducting its own research, reopened the discussion. It opined that People v. Jones (2011) 51 Cal.4th 346 (Jones) indicated the prosecution should be allowed to present uncharged prior act evidence when the evidence of intent is equivocal, even if the defense does not contest the issue. The court reasoned that a juror in the present case could still think, "If items are left behind, one might conclude . . . the intent of the entry was not to take items . . . . We don't know what it is, but we have a doubt . . . as to what the intent was. And we've been told in the instructions that the People have to prove both the breaking in and the intent to . . . steal."
Defense counsel said he would "stipulate that whoever acted did act with intent," and argued that Lopez was much closer to the facts of the present case than was Jones. The prosecutor responded that such a stipulation would not work because it was not based on any fact and argued the case was distinguishable from the facts in Lopez.
The court thought the facts in the present case were closer to Jones than Lopez. After more discussion, the court ruled that, upon consideration of Evidence Code sections 1101 and 352, "in this particular case, the evidence can be admitted with the appropriate limiting instruction." The court thought the People could not be required to accept the stipulation offered by the defense and that in any event the intent evidence was too "equivocal" to require such a stipulation. The court also thought "[w]e've got a pretty . . . strong jury . . . . I'm not concerned about their not being able to understand the limiting instruction I'm going to be giving them." It also ruled the uncharged prior act evidence would not be unduly prejudicial.
At trial, the prosecution presented evidence of the September 2014 theft. The court instructed the jury that this evidence could only be considered if the People proved the uncharged prior act by a preponderance of evidence and then only for whether defendant "acted with intent to commit a theft as charged in this case" and "had a plan or scheme in committing either or both of the offenses charged in this case." The evidence could not be used to conclude defendant "has a bad character or is disposed to commit crime," but only as "one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of either of the crimes charged . . . . The People must still prove each charge beyond a reasonable doubt."
B. Governing Law
Evidence Code section 1101, subdivision (a) prohibits the admission of evidence of a person's character or a trait of his or her character when it is offered to prove conduct on a specified occasion. Evidence Code section 1101, subdivision (b) allows "the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." Thus, " '[e]vidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as . . . intent . . . .' " (People v. Fuiava (2012) 53 Cal.4th 622, 667.) Generally, its admission depends on " '(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' " (People v. Kelly (2007) 42 Cal.4th 763, 783.)
" 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] . . . [T]he uncharged conduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' " (People v. Foster (2010) 50 Cal.4th 1301, 1328.) In determining if uncharged prior act evidence is relevant to show a common plan or scheme, "the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (People v. Ewoldt (1994) 7 Cal.4th 380, 403, superseded by statute in part on other grounds as stated in People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
"Evidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis.' " (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Thus, consistent with Evidence Code section 352, "[t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp (1998) 18 Cal.4th 349, 371.)
We review a trial court's rulings under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Rogers (2013) 57 Cal.4th 296, 326.) We will not disturb a ruling " ' " 'unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice.' " ' " (Ibid.)
C. Analysis
Defendant argues the trial court erred by admitting evidence of his September 2014 theft because the issue of intent in the present case "was not reasonably in dispute." Citing Lopez, he contends, "where the evidence unequivocally shows that a burglary took place and the only issue in dispute is whether the defendant was the perpetrator, other-acts evidence to show intent is inadmissible."
In Lopez, the defendant was charged with a first degree burglary after a burglar stole two purses in the early morning from a victim's kitchen and a credit card from one of the purses was used a short time later to buy items at a convenience store. (Lopez, supra, 198 Cal.App.4th at pp. 703-704.) Store video showed the defendant at the store with another person who actually used the credit card. (Id. at p. 704.) The two drove away in a car whose license plate led to defendant's girlfriend. Police learned from her that the car had been used by defendant on the night of the incident and contained items she did not recognize. (Id. at pp. 704-705.) Before trial, defendant moved to exclude evidence that he had engaged in prior uncharged thefts, but the trial court found the evidence probative of intent in the case. (Id. at p. 713.)
The Lopez court disagreed. The court reasoned that "[e]vidence regarding the . . . burglary showed that someone entered the kitchen of the . . . residence and took two purses. Assuming [the defendant] committed the alleged conduct, his intent in so doing could not reasonably be disputed—there could be no innocent explanation for that act." (Lopez, supra, 198 Cal.App.4th at p. 715.) It reversed the defendant's conviction because the trial court abused its discretion by admitting the uncharged prior act evidence, concluding "the evidence . . . did not have substantial probative value that outweighed its inherent prejudice." (Id. at pp. 715-716.)
Defendant's argument is unpersuasive because, unlike in Lopez and assuming he broke into Wilson's Pathfinder, his intent in doing so was not entirely clear on July 19, 2015, when he removed items from the Pathfinder, placed them next to the vehicle and left. Further, when he was detained, he did not have any items from the Pathfinder. Even if the defense did not contest his intent, the prosecution nonetheless carried the burden of showing this element of burglary beyond a reasonable doubt.
Our Supreme Court analyzed a similar circumstance in Jones, supra, 51 Cal.4th 346. There, the defendant and another person entered a residence, killed the occupants and stole some items from the residence. (Id. at p. 351.) The nature of the charges made whether the defendant intended to burglarize the residence upon entering it an important issue. (Id. at p. 350.) Although the defendant argued identity was the only disputed issue at trial, our Supreme Court concluded this was "not dispositive." (Id. at p. 372.) It affirmed the trial court's decision to admit uncharged prior act evidence against him to show intent, stating: " '[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense.' [Citation.] 'The prosecution, of course, must prove each element of its case. Defendant's assertion that his defense to the two charges was bound to focus upon identity, and not intent, would not eliminate the prosecution's burden to establish both intent and identity beyond a reasonable doubt.' " (Ibid.) The court also concluded the uncharged prior act evidence was not particularly prejudicial, especially in light of the fact that it included a conviction (reducing the possibility the jury would want to punish him for the prior act) and the trial court's instruction that the jury limit its consideration of that evidence to the issue of intent. (Id. at pp. 371, 372)
The evidence of intent in the present case was unclear just as it was in Jones. Further, given the equivocal nature of this evidence, we reject defendant's argument that uncharged prior act evidence was inadmissible under Evidence Code section 352 because of its prejudicial nature. As in Jones, this evidence had probative value. Defendant's actions in September 2014 were similar to those in this case; he entered a vehicle parked on a residential street in the middle of the night and took items from its glove compartment. The evidence was also indisputable, as he admitted to police that he entered the vehicle with the intent to steal, and he was convicted of theft. And the evidence was not inflammatory in light of the relatively modest nature of the crime. Finally, the trial court concluded the jury was capable of following a limiting instruction and instructed it accordingly.
Defendant further argues that the United States Supreme Court has left open whether the admission of unduly prejudicial propensity evidence violates his federal constitutional due process rights under Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5 and Payne v. Tennessee (1991) 501 U.S. 808, 825, that if he forfeited such a constitutional claim by his counsel's failure to raise it below (as the People contend) he received ineffective assistance of counsel, and that admission of the prior act evidence was prejudicial error. Because we conclude that the uncharged prior act evidence was properly admitted and not unduly prejudicial, we reject the merits of defendant's due process argument and need not address his other arguments.
In short, we agree with the trial court that the present circumstances are more similar to Jones than to Lopez. By pleading not guilty to the charged burglaries, defendant placed all the elements of these crimes in dispute, including his intent to steal when he broke into the Pathfinder. (See People v. Scott (2011) 52 Cal.4th 452, 470.) Jones indicates that when the evidence of intent is as equivocal as it is in this case, the uncharged prior act evidence is not unduly prejudicial and the trial court gives a proper limiting instruction, the trial court acts within its discretion when it allows the prosecution to present this evidence. We conclude the trial court did so here.
II.
Officer Testimony of Knox's and Walker's In-Field Identifications of Defendant
Defendant next argues the trial court abused its discretion by admitting testimony from two police officers that on July 19, the night of the incident, Knox and Walker each identified defendant as the person who broke into Walker's Pathfinder. Defendant contends this testimony was inadmissible, prejudicial hearsay. We disagree.
A. Knox's Statement to Officer Ojo
At trial, Knox testified on direct examination that she spoke to a police officer in her home and on her porch on July 19 about the incident. Asked whether she told this officer or another officer whether or not they had the right suspect, she testified, "Um, I don't recall tellin' them that they had the right suspects, but when I seen them pull up . . . and I seen the car, I did tell 'em that was the right car." She recalled stepping onto her porch and signaling to an officer to come over to her. Asked if she told that officer the suspects were the same persons that caused her to call the police, she again said she only recalled identifying the car, and did not recall identifying the suspects.
Asked on cross-examination if she was sure about inviting the officer over to talk with her, Knox testified, "[Y]ou gotta remember, I smoke marijuana. So I'm tellin' you I invited this guy to come and talk to me." Asked why she brought up her smoking marijuana, she said, "Because you squeezin' me for complete details of something that happened in July to almost January, and I'm tryin' to give you the best detail that I have, and you askin' me am I absolutely sure . . . . I'm absolutely sure that I had this conversation with the officer . . . ." She denied that her smoking marijuana affected her memory.
Asked on redirect if she recalled telling the officer on her porch that the female suspect was the same female she saw driving the Honda, Knox said, "Yeah, I was like that's—'That's them. That's them,' you know. 'That's them.' " Because . . . I see . . . that same Caucasian lady that was in the car, that was her that they had detained." In response to a follow-up question, she confirmed that she said, " 'That's them. That's them,' " and said, "It was two in the car, and I even explained to the officer I don't know what happened to the third person." She further testified that she identified the male suspect to police because, although she had not previously seen his face, she recognized his body figure and the jacket he was wearing. On recross, she said she told the officer she had not seen the male's face when he was removing items from the Pathfinder.
Officer Onome Ojo of the Richmond Police Department testified that by the time he arrived at the scene on July 19, other officers had detained defendant and a female suspect. The two suspects were outside of a gold Honda. Ojo parked his patrol car in front of Knox's house, reached her on the phone and, as he spoke to her, she "crept" to his vehicle and spoke to him at the driver's side door. The defense objected that anything Knox said to Ojo was hearsay and, after a meeting in chambers, the court allowed the prosecutor to ask what Knox had said. Ojo answered affirmatively to whether Knox told him that the detainees (one of whom was defendant) were the two persons she had called the police about. Ojo said he also spoke to Knox later in her home, and that Knox never mentioned a third suspect to him. She also told him that she had observed the male detainee place a box of items on the curb.
Defendant contends Knox's statement to Ojo was inadmissible because it did not qualify under the only conceivable hearsay exception, that being for a prior identification as allowed by Evidence Code section 1238.
Evidence Code section 1238 provides, "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: [¶] (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [¶] (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and [¶] (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time."
The People do not contest that Evidence Code section 1238 did not apply to Knox's identification of defendant to Ojo, but instead argue that Knox's identification was an admissible inconsistent statement, which the trial court could reasonably imply from Knox's ambiguous and, the People contend, deliberately evasive trial testimony. The People also assert that any error in admitting this evidence was harmless.
We need not further address the merits of the parties' debate about the admissibility of Knox's statement to Ojo because we agree with the People that, assuming the court abused its discretion in admitting this evidence, it was undoubtedly harmless. (See People v. Duarte (2000) 24 Cal.4th 603, 618-619 [applying the state standard for error established in People v. Watson (1956) 46 Cal.2d 818, 836-837 to the admission of hearsay].) Knox testified at trial that she did tell an officer on the night of the incident that the two detained suspects were the people she saw around the Pathfinder, that the gold Honda was the car she saw drive up to the Pathfinder and that defendant was the male she saw based upon his build and his jacket. Walker's testimony of what he saw on his surveillance video for July 19 provided further support for Knox's identification of defendant. Ojo's testimony of what Knox told him added little to the People's already solid case in light of Knox's and Walker's testimony.
B. Walker's Statement to Officer Nguyen
Also over defendant's hearsay objection, Officer Khoa Nguyen of the Richmond Police Department testified that on the night of July 19, Walker walked over to him and identified defendant and the female detainee as the people who had burglarized his vehicle on June 19. As Nguyen began to testify on these matters, defense counsel objected, including on a hearsay ground. After a sidebar conversation with counsel, when counsel again objected, the court stated, "The objection was overruled but only in a limited sense. All right? The limited sense has to do with possible identification procedures, not anything else that might have happened." Nguyen went on to testify that Walker "stood face to face" with the detainees and said "these were the same two people that burglarized his vehicle exactly a month ago on June 19th." Defense counsel objected to this testimony, including on a hearsay ground and the court overruled the objection, stating, "It's not hearsay."
Later, Walker testified that when he first saw defendant on July 19, he told an officer, " 'This is the same guy that broke into my truck the first time.' " He further testified that a photo exhibit accurately depicted the male who was detained, that this was the male he had seen on his video from June 19 and that the jacket in the photo was similar to the one worn by the male on June 19.
In reply to defendant's contention that Walker's identification of defendant to Nguyen was inadmissible hearsay, the People argue this evidence was admissible because it was not offered for its truth, but "was relevant to explain how the police learned about the earlier auto burglary in June and why the officer did not use a multi-person line-up or other procedure to have Walker identify the burglar," citing People v. Scalzi (1981) 126 Cal.App.3d 901, 907 (" 'one important category of nonhearsay evidence [is] evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief' ").
The court's statement in overruling defendant's objection indicates it had exactly this nonhearsay purpose in mind, as it stated it was admitting the evidence for the limited purpose of explaining "possible identification procedures, not anything else that might have happened." Defendant does not address the court's statement at all. While defendant argues there was no further questioning regarding identification procedures, he fails to explain why the court's stated reason for overruling his hearsay objection was an abuse of discretion at the time it was made. Therefore, he has not met his burden of affirmatively showing error on appeal. (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 ["Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error"].)
In any event, any error would have been harmless in light of Walker's own testimony that he identified defendant at the scene as the burglar of his vehicle in June 2015. Nguyen's testimony about what Walker said was duplicative of more direct nonhearsay evidence of the same facts.
Given our conclusions, we do not address defendant's claim that the cumulative effect of the trial court's multiple errors deprived him of a fair trial.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE P.J. /s/_________
RICHMAN, J.