Opinion
NOT TO BE PUBLISHED
Superior Court County (Super. Ct. No. F384211) of San Luis Obispo Christopher C. Money, Judge
Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Adriana Vasquez appeals from the judgment entered after conviction by a jury of conspiracy to commit burglary (Pen. Code, §§ 182, subd. (a)(1), 459), second degree commercial burglary (§§ 459, 460, subd. (b)), grand theft (§ 487, subd. (a)), possession of a false identification card (§ 529.5, subd. (c)), and petty theft with a prior theft-related conviction. (§ 666.) She was sentenced to prison for three years.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court erroneously admitted her co conspirators' hearsay statements. She argues that the admission of these statements violated her Sixth Amendment right of confrontation. We affirm.
Facts
John Heredia was the liquor manager for the Albertsons store on Madonna Road in San Luis Obispo. On January 28, 2006, he saw the following four persons inside the store: appellant, Mareina Mejia, Xiomata Lopez, and Wuilmer Figueroa. "They were all gathered together" with one shopping basket in the area where over-the-counter drugs were kept. Heredia recognized Figueroa and Lopez as having been inside the store on the previous Saturday.
Figueroa and Lopez went to an aisle where Lopez took items from the shelf and put them inside her purse. After Lopez exited the store without paying for the items, Heredia apprehended her and brought her to the front office. He then reentered the store and saw appellant, Mejia, and Figueroa "gathered together" and talking to each other in the grocery aisle. Mejia took a can of baby formula from the shelf and put it inside her purse. Appellant and Figueroa were "shielding" her with their bodies "so nobody could see what [Mejia] was doing."
Heredia contacted them, and "they said something and broke up." Mejia walked out of the store. Heredia apprehended her and brought her to the front office. Inside her purse he found the can of baby formula. She had a cellular telephone in her pocket.
Heredia reentered the store and confronted Figueroa and appellant. Appellant said, "What? What? I have money." She opened her purse, which contained "a wad of money, a whole lot of money." At Heredia's request, Figueroa and appellant exited the store.
The police arrested appellant, Figueroa, Mejia, and Lopez. Inside appellant's purse, the police found $7,272.57 in cash and a counterfeit California identification card.
James Leen, an expert on organized retail crime, opined that the shoplifting at Albertsons was an organized retail crime and that the perpetrators were "part of a booster crew." Leen explained that a booster crew consists of a group of persons who "boost or shoplift high-ticketed items after which they are very organized. They generally use communication equipment, cell phones, two-way radios. Each person within this group will have a specific duty, lookouts, getaway cars, one person or two people to boost and remove the items from the shelves and other subjects to actually boost the property and leave the store with it." One member of the booster crew will usually carry about $5,000 in cash to post bail if the crew gets arrested.
On March 9, 2006, six weeks after the Albertsons incident, appellant, Mejia, Thomas Castro, and a fourth person were arrested for shoplifting from a Safeway store in Rockland, California. While acting in concert, they stole approximately $4,000 to $5,000 in merchandise. All of the suspects got out of a minivan parked in the store parking lot.
Pre-trial Statements
Appellant stated as follows to Officer Daniel McDow: She and her boyfriend, Figueroa, took the bus to San Luis Obispo to purchase an automobile there. The cash in her purse was the proceeds of a recent sale by her of a vehicle to Thomas Castro in Los Angeles. Figueroa was with her when she sold the vehicle to Castro. She did not know Mejia or Lopez, and was not involved in stealing from Albertsons.
Mejia told Officer McDow that she was not involved in the theft from Albertsons. She said that she knew Lopez, but did not know appellant or Figueroa. Mejia also said that she had come by bus to San Luis Obispo.
Figueroa stated as follows to Officer McDow: He was friends with appellant, but was not romantically involved with her. He came to San Luis Obispo with appellant and Castro to purchase a car for appellant. She had never previously owned an automobile. Castro drove them to San Luis Obispo in his red Forerunner. He dropped them off at a Shell station near Albertsons. Figueroa did not know why Castro had dropped them off at this location. The cash in appellant's purse was the proceeds of sales that she had made at a swap meet. Figueroa did not steal anything from Albertsons. He did not know Mejia or Lopez.
Appellant had given Officer McDow a telephone number for Castro. McDow telephoned Castro in Figueroa's presence. Castro said that he had sold a car that day to appellant for $8,000 in Los Angeles and that he had not driven to San Luis Obispo. (RT 991-992) After the telephone conversation, McDow asked Figueroa why Castro "didn't cooperate in his story about driving up together to San Luis [Obispo]." Figueroa did not respond. "He just became really nervous, sat back in his chair, kind of smiled and shrugged."
Admission of Statements
The prosecutor asked Officer McDow to relate Mejia's conversation to the jury. Appellant's counsel made a hearsay objection. The prosecutor told the court that he intended to have McDow testify as to statements made by Mejia and the other co conspirators. The statements were not being offered for the truth of the matters stated. Instead, they were being offered for their falsity. The prosecutor asserted that, because he could show that "all of their statements" were "untruthful," the statements were evidence of "consciousness of the guilt of the crime committed." Appellant's counsel responded, "I think it might show consciousness of guilt as to Ms. Mejia, but that's irrelevant because she's already pled out to this."
The prosecutor insisted that the statements were admissible non hearsay evidence: "[C]ounsel's objection is hearsay and it's not offered for that purpose. In fact, these are the very statements that I told your honor this morning . . . that I was going to ask for admonition . . . that you instruct [the jury] they are not being offered for the truth. They are being offered to show the relationship between the parties, the existence of the conspiracies and consciousness of guilt."
The trial court responded, "I . . . have difficulty understanding how consciousness of guilt of one conspirator can be used to prove the conspiracy. It just doesn't follow. You can prove conspiracy through the actions of these various people, acting in concert, but you can't prove it through the statements of a conspirator unless they are in furtherance of a conspiracy."
The prosecutor replied: "If I can show that these lies are intended to -- or one can draw the inference these lies are intended to cover up the conspiracy to let them continue on with their conspiracy --" The court interrupted the prosecutor to say that, although the statements were inadmissible to show consciousness of guilt, they were admissible under the co conspirator exception to the hearsay rule. (Evid. Code, § 1223, hereafter section 1223.) The court reasoned that the statements had been made "to further the goal of the conspiracy which is to continue these types of crimes." Thereafter, appellant's counsel did not object when the prosecutor asked Officer McDow to relate the statements made to him by Figueroa and Castro.
Section 1223 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence."
During closing argument, the prosecutor argued that the co conspirators were "lying" to McDow because "this is a booster crew." Their stories "are all planned, they are part of the plan, they are part [of] the conspiracy. They are designed to get themselves and their colleagues out of hot water when they get caught."
Discussion
Appellant contends that the statements of Mejia, Figueroa, and Castro were inadmissible hearsay. But the statements were not hearsay because the prosecutor made it clear that they were not being offered to prove the truth of the matters stated. " '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." (Evid. Code, § 1200, subd. (a).) In People v. Noguera (1992) 4 Cal.4th 599, 624-625, our Supreme Court rejected the defendant's contention that statements of a co conspirator, Dominique, were erroneously admitted under section 1223. The Supreme Court concluded that, to the extent that the statements "were offered for a non hearsay purpose, that is, to establish the existence of a conspiracy between Dominique and defendant by demonstrating that Dominique was lying to the police," the statements were "not subject to the strictures of Evidence Code section 1223." (Ibid.)
Since the statements of Figueroa and Castro were not hearsay, we need not consider respondent's contention that, by failing to make a specific hearsay objection as to their statements, appellant did not preserve the issue for appellate review.
Appellant claims that the admission of the statements violated his Sixth Amendment right of confrontation. But appellant's counsel did not object on this ground. Appellant, therefore, waived his constitutional claim. (People v. Burgener (2003) 29 Cal.4th 833, 869 [hearsay objection insufficient to preserve confrontation claim].)
Appellant contends that, by failing to preserve the confrontation claim, his counsel rendered ineffective assistance. "To secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel's shortcomings. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1068.)
Appellant has failed to carry her burden of establishing that counsel's performance was objectively unreasonable. "[T]he Sixth Amendment is not implicated by the admission of non hearsay statements. [Citations.]" (People v. Mendoza (2007) 42 Cal.4th 686, 698.) "Because we have already concluded [that the] statements were admitted for a non hearsay purpose, [appellant's] claim fails." (Id., at p. 699.)
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.