Opinion
NOT TO BE PUBLISHED
Superior Court of San Luis Obispo County No. F411505, Dodie A. Harman, Judge.
Linda C. Rush, 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, Yun K. Lee, Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Chad W. Westbrook appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189), assault with a deadly weapon by force likely to produce great bodily injury (§ 245, subd. (a)(1)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found true allegations of various enhancements. Westbrook was sentenced to 50 years to life plus a determinate term of 17 years. The sentence consisted of 25 years to life for the murder, 25 years to life for the personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), 4 years for assault with a deadly weapon, 10 years for personal use of a firearm (§ 12022.5, subdivision (a)), and 3 years for personally inflicting great bodily injury on the surviving victim (§ 12022.7, subd. (a)). The court also imposed a concurrent two-year term for possession of a firearm by a felon, and imposed and stayed a one-year enhancement for a principal being armed with a firearm. (§ 12022, subd. (a)(1).)
All statutory references are to the Penal Code unless otherwise stated.
Westbrook contends that the trial court erred by admitting an unintelligible recording and written transcript of conversations between Westbrook and his codefendant Patrick Wollett. We affirm.
FACTS
Before the murder, Sarah Lonsinger-Rey, Hope Tanore, Westbrook, and codefendant Patrick Wollett lived together in Wollett's trailer. Lonsinger-Rey was engaged to Wollett's brother. Tanore was Westbrook's sister. The murder victim, Joshua Houlgate, was a friend of Westbrook. For several days prior to the shooting, all of these individuals spent considerable time in the trailer consuming methamphetamine.
In the evening of December 5, 2007, Westbrook, Wollett, Lonsinger-Rey and Tanore went to a bar and grill. Houlgate joined the group later. Houlgate left the bar and grill alone and, at approximately 11:30 p.m., the others drove back to Wollett's trailer in Tanore's car. Lonsinger-Rey fell asleep on a couch in the living room. Westbrook, Wollett and Tanore went into a bedroom to socialize. Wollett's friend Brad McCormick came over for a period of time, but Wollett told McCormick that something was going to happen and asked him to leave.
Houlgate arrived after 1:30 a.m. He smoked methamphetamine with Westbrook, Wollett and Tanore in a bedroom of the trailer. At approximately 3:00 a.m., Houlgate went into the living room where Lonsinger-Rey was sleeping. He woke her up and they had sex. Afterwards, they fell asleep on a mattress that had been placed on the floor. Wollett was upset at Lonsinger-Rey and Houlgate for having sex.
Tanore left the trailer at approximately 4:00 a.m. She drove her car to the street and was picked up by a friend. Shortly thereafter, a witness saw Wollett sitting in Tanore's car with the motor idling. At about the same time, Wollett sent a text message to friend Susan Meszaros stating that he "may need help soon. Be there for me."
At approximately 5:00 a.m. on December 6, Houlgate and Lonsinger-Rey were awakened from their sleep in the trailer living room when Westbrook and Wollett began hitting them with metal objects. Houlgate pulled a blanket over himself and Lonsinger-Rey pulled her legs up to her torso for protection. They were struck several times, but were able to stand up. Westbrook was standing next to Houlgate holding a shotgun. Wollett was standing near Lonsinger-Rey. When Houlgate ran for the door, Westbrook shot him. Westbrook reloaded and pointed the shotgun at Rey, but ran out the back door of the trailer without firing. Wollett ran out the front door.
Neighbors heard a bang, came to investigate, and found Houlgate lying in the parking lot directly in front of Wollett's trailer. Police and emergency personnel were dispatched at 5:27 a.m. Houlgate died at the scene from a shotgun wound to his chest. Rey suffered two broken bones in her foot, a contusion to her forearm, and bruises. Houlgate had injuries from blunt force trauma. One injury was tapered and consistent with being hit with a baseball bat.
Houlgate and Lonsinger-Rey's DNA was found on a pillow case in the trailer, and Houlgate's blood was found on the pillow case and on Wollett's jeans. There was a trail of blood from the trailer door to where Houlgate fell.
Within minutes after the murder, Wollett called Tyler Strohl, and left messages saying he needed help and was on the run. Strohl was a friend of both Westbrook and Wollett. Strohl had a Remington shotgun which had been taken from his home a day or two before the murder. Wollett had visited Strohl's home during that period. When Wollett and Strohl talked later in the day, Wollett told Strohl that, "shit happened; shit went down." Strohl asked about the shotgun and Wollett said it had been taken care of.
Wollett also called or texted friends Susan Meszaros and Chelsea Gordon early on the morning of the murder to ask for help. He stated that he needed help from them. At 8:00 a.m., Wollett and Westbrook went to the home of Chelsea Gordon's mother to wait for Chelsea. When the mother asked what was wrong, Wollett said she would find out on the news. Westbrook also called a friend to ask for a ride.
During the investigation, a Remington shotgun shell was found in Westbrook's residence, and a 25-inch metal pipe was found in Tanore's car which Tanore denied ever having seen. In September 2008, a Remington shotgun and a baseball bat were found a few hundred yards from the trailer.
DISCUSSION
Westbrook contends that the trial court erred by admitting a CD recording of two conversations between Westbrook and codefendant Wollett as well as a written transcript of the recording. He argues that much of the recording was inaudible and unintelligible, and permitted the jury to speculate as to the content of the unintelligible portions. We disagree.
If a proper foundation is laid, both an audio recording and a written transcript of a conversation are admissible. (People v. Siripongs (1988) 45 Cal.3d 548, 574; People v. Wojahn (1959) 169 Cal.App.2d 135, 146.) The party seeking to introduce a recording must establish that it is an accurate representation of what it purports to be. (See People v. Mayfield (1997) 14 Cal.4th 668, 747.) Typically, a law enforcement officer will testify as to the method and place of recordation and whether the recording fairly and accurately sets forth the conversation. (People v. Spencer (1963) 60 Cal.2d 64, 77-78.) To introduce a written transcript, the trial court or a peace officer will compare it to the recording and verify that it correctly represents the recorded conversation. (See Wojahn, at p. 146.)
To be admissible, audio recordings and written transcriptions need not be completely intelligible for the entire conversation as long as the intelligible portion of the conversation sets forth relevant information without creating an inference of speculation or unfairness. (People v. Polk (1996) 47 Cal.App.4th 944, 952; People v. Demery (1980) 104 Cal.App.3d 548, 559, overruled on another ground as recognized in Lucido v. Superior Court (1990) 51 Cal.3d 335, 362.) "[A] partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape's relevance is destroyed." (Polk, at p. 952; see also People v. Von Villas (1992) 11 Cal.App.4th 175, 225; People v. Miley (1984) 158 Cal.App.3d 25, 36.)
As with other evidence, we review a trial court's rulings on the admission of recordings and written transcripts under the abuse of discretion standard. (People v. Polk, supra, 47 Cal.App.4th at p. 953; People v. Siripongs, supra, 45 Cal.3d at p. 574.) The trial court's ruling will be upheld unless there is a manifest abuse of discretion resulting in a miscarriage of justice. (Siripongs, at p. 574.) Admission of transcripts of admissible recordings is prejudicial only if it is shown they are so inaccurate that the jury might be misled into convicting an innocent man. (Polk, at p. 955.)
The recording was of conversations between Westbrook and Wollett while they were being transported to and from court for their arraignment. Westbrook and Wollett objected to admission of the recording and transcript based on the unintelligibility of portions of the recording. Counsel also argued that the jury would focus on the written transcript rather than listening to the recording. The trial court stated that portions of the recording were intelligible, but no final ruling on admission was made. The court asked the prosecution and defense to work on the transcript together and agree on a final version. The defense declined that invitation.
When defense counsel renewed their objections later in the trial, the trial court ruled that the recording was admissible. The court also allowed the jury to read the transcript while the recording was being played. The court admonished the jury that the recording, not the transcript, is the evidence, and that the transcript is intended to assist the jury in following the recording. During deliberations, the jury had a copy of the recording, but not the transcript.
There was no abuse of discretion in admitting the recording. The record shows the trial court was well aware of the inaudible and unintelligible portions of the recording, and carefully balanced the probative value of the intelligible portions against the potential for prejudice based on jury speculation as to the unintelligible portions. The trial court could reasonably conclude that the unintelligible statements on the recording would not lead to improper speculation by the jury. "We decline to indulge in speculation as to what 'further evidence of culpability' the jury could have possibly imagined." (People v. Siripongs, supra, 45 Cal.3d at p. 574.)
There was also no abuse of discretion in allowing the jurors to use the transcript as a guide while listening to the recording. (See People v. Polk, supra, 47 Cal.App.4th at pp. 955-956.) Westbrook claims the transcript was prejudicial because it included words added by the preparer of the transcript, district attorney investigator Isabel Funaro. Funaro testified that the transcript was accurate to the best of her ability but sometimes she speculated what the word was and filled in a word to give the sentence meaning. Westbrook, however, cites no example of inaccuracy in the transcript that might mislead the jury, and the jury was admonished that they were to rely on the recording as the evidence.
As the trial court pointed out, many portions of the recording contained intelligible, relevant, and admissible evidence. The recording includes incriminating admissions by both Westbrook and Wollett and other relevant information. (Evid. Code, § 210.) Intelligible portions of the recording also corroborate other evidence presented by the prosecution.
Specifically, during the prearraignment conversation, Wollett stated, "I wasn't the shooter. I'm not gonna say who anyone was, I don't know, dude." Westbrook stated, "The gun went off. Where it come from, I don't know. He had it?" These statements are relevant and probative to prove that Westbrook and Wollett were present at the time of the murder and knew the identity of the person or persons who shot Houlgate and beat Lonsinger-Rey.
During the post-arraignment conversation, Wollett stated, "I told them, you know, what happened, you know, there was a struggle and you brought the shotgun and say, you know, [unintelligible] because you know, my brother's fiancé—you know, they were doin' it in here, grabbed me [unintelligible], the shotgun [unintelligible]... you're a goner, and I grabbed the closest thing I had to me, a bat, and, you know, and then there was a struggle, with the shotgun, it all happened real fast." Wollett also stated that, "She also said that you were [unintelligible] the shotgun and fired.... And I had the metal pipe. That's why I said, you know--they don't have shit." Westbrook stated, "I was just trying to help you out, Pat. I was trying to defend you, man. Fuck." Westbrook also stated, "when you brought the shotgun over, she was fucking drunk, passed out [unintelligible] she didn't see it." Most pointedly, Wollett expressly stated: "You shot him in the chest."
These statements relate in part to what Westbrook and Wollett were going to tell the police and their assessment of the facts known to the police. The statements also include incriminating admissions showing Westbrook and Wollett's knowledge of the facts and their culpable involvement in the murder. Nothing could be clearer than the statement that Westbrook "shot him in the chest."
Westbrook also contends that the transcript should have been excluded under Evidence Code section 352 because its probative value was substantially outweighed by the probability that admission would create a substantial danger of undue prejudice or mislead the jury. He further argues that, if this contention is deemed forfeited due to the failure of trial counsel to object on Evidence Code section 352, failure to object constituted ineffective assistance of counsel. We disagree.
Although the language of Evidence Code section 352 was not used by counsel or the trial court on the record, the court and counsel were well aware that the legal standard for admission of a partially unintelligible recording requires a balancing of probative value against prejudice. Recordings and written transcriptions need not be completely intelligible as long as relevant material is intelligible, and the unintelligible portions would not lead to speculation by the jury or unfairness. (See People v. Polk, supra, 47 Cal.App.4th at p. 952.) In other words, the evidence is admissible unless the probative value of relevant intelligible portions is undermined by the possibility of prejudice from jury speculation regarding the unintelligible words.
In the trial court, objections by Westbrook and Wollett were based, in part, on the prejudicial effect of the unintelligible portions of the recording and transcript, and defense counsel for Westbrook argued that the probative value of the recording and transcript was slight because so many of the words were unintelligible. In ruling, the court cited Siripongs, a case involving an Evidence Code section 352 analysis. (People v. Siripongs, supra, 45 Cal.3d at p. 574.) The trial court's statements and arguments by counsel show that the court made an implicit finding that the prejudicial effect of the evidence was not substantially outweighed by its probative value. (See People v. Prince (2007) 40 Cal.4th 1179, 1237.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.