People v. Fuentes

• Decision Date: 25 February 1998
• Docket Number: No. F026032,F026032
• Citation: 72 Cal.Rptr.2d 237,61 Cal.App.4th 956
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 1388, 98 Daily Journal D.A.R. 1888 The PEOPLE, Plaintiff and Respondent, v. Edward FUENTES, Defendant and Appellant.

Page 237

72 Cal.Rptr.2d 237

61 Cal.App.4th 956, 98 Cal. Daily Op. Serv. 1388,

98 Daily Journal D.A.R. 1888

The PEOPLE, Plaintiff and Respondent, v. Edward FUENTES, Defendant and Appellant.

No. F026032.

Court of Appeal, Fifth District, California.

Feb. 25, 1998.

Certified for Partial Publication. ^*

[61 Cal.App.4th 958] Bruce Laning, Santa Ana, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Shirley A. Nelson and Wayne K. Strumpfer, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, Presiding Justice.

Appellant Edward Fuentes was convicted, following a jury trial, of first degree murder (Pen.Code, § 187; count 1) and attempted robbery (Pen.Code, §§ 211, 664; count 2). As to each count, the jury found appellant was armed with a firearm during commission of the offense (Pen.Code, § 12022, subd. (a)(1)). Appellant was sentenced to 29 years to life in prison, and ordered to pay a $5,000 restitution fine and to be housed at the California Youth Authority (Welf. & Inst.Code, § 1731.5, subd. (c)). This timely appeal followed.

In the published portion of this opinion, we hold that admission of extrajudicial statements of coparticipants, pursuant to Evidence Code section 1230, did not deny appellant his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. In the unpublished portion, we reject his remaining contentions.

FACTS

On the night of November 4, 1995, appellant and his friends--Ricky Fernandez, Marco Reyna, Leng Vang, Keith Scott, Ray Alarcon, and Johnny De Leon--drove from Reyna's house in Merced to Planada. There, De Leon, Alarcon, and Fernandez got out of the car and one of them (apparently Fernandez) shot Isabel Sotelo in an attempted robbery. Sotelo later died. As Fernandez was himself shot (presumably by Sotelo) badly enough to need medical treatment the group then concocted a story about his being the victim of a drive-by shooting in Merced. Police later determined there had been no such shooting. Ultimately, law enforcement officers recovered both the car and the probable murder weapon, a rifle which bore Fernandez's palm print, from the home of Reyna's mother.

Reyna, who was granted immunity in return for his testimony, testified that the plan to rob someone was made by the group (all of whom were D.B.S. gang members) before they left the house to go to Planada. ¹ Reyna said the rifle belonged to appellant, and that appellant was present during the discussion of the robbery. Reyna said appellant later told him that Fernandez was shot trying to rob Sotelo.

Appellant testified and admitted that he drove the car. However, he denied knowing what De Leon, Alarcon, and Fernandez were going to do when they got out of the vehicle. Appellant said he did not know anything about a robbery until detectives told him. Keith Scott, who also testified for the defense, similarly denied that there was any discussion or plan relating to a robbery. However, whereas appellant denied helping to make up the cover story about how Fernandez was shot, Scott testified that everyone made up that story together.

Sergeant Martin of the Merced Police Department, who testified as an expert on gangs, opined that the driver of the car (appellant) knew what was going to happen when the others got out of the vehicle.

DISCUSSION

I. ADMISSION OF EXTRAJUDICIAL STATEMENTS

A. Background

At trial, Johnny De Leon, Ray Alarcon, and Ricky Fernandez (all of whom were charged with criminal offenses arising out of the Sotelo homicide) asserted their Fifth Amendment privilege against self-incrimination, and refused to testify. The prosecution then sought to have statements they made to police admitted into evidence pursuant to Evidence Code section 1230 (declarations against interest). ² Appellant objected, contending portions of the statements were self-serving and, because the declarants would not be available for cross-examination, admission of the statements would violate his Sixth Amendment rights to confront and cross-examine witnesses.

The trial court determined that De Leon, Alarcon, and Fernandez were unavailable as witnesses. It ruled that statements concerning what took place in Planada would be admitted; however, statements which were not against the declarant's penal interest (for instance, a statement by Alarcon that appellant loaded the rifle, but Alarcon was bored so he unloaded it and reloaded it) would be excluded as violative of appellant's Sixth Amendment rights. To that end, the court and counsel went through the transcripts of the tape-recorded statements to determine what evidence would be admitted. The trial court emphasized that it would not allow the prosecutor to place into evidence anything that incriminated appellant without defense counsel having an opportunity to cross-examine the declarant.

Over appellant's standing objection, the statements were admitted at trial through testimony by Detectives Perez and De Busk, who interviewed the three. De Leon told the detectives that he and Fernandez had confronted the people in Planada to rob them of their money. Alarcon related that he heard someone say "give me your money," but he did not know who said this. The plan was that Alarcon would hold a McDonald's cup in order to collect the money or jewelry. ³ Fernandez was supposed to keep the gun pointed at the victims, who were supposed to place their valuables in the cup. Alarcon related that De Leon had a small .22 caliber gun that he pointed at the victims, but it was on safety and there was only one bullet in it. There were 12 or 13 bullets in the rifle, which Alarcon said he had loaded. Fernandez told detectives that they were in Planada and saw two guys walking. The group went around the corner and Fernandez got out of the car with the rifle and demanded their money. De Leon had a handgun, and Alarcon had a cup to hold the money. Fernandez said he was the only one who did the shooting.

B. Analysis

We start with the proposition that the statements in question constituted hearsay and that, as a general rule, hearsay evidence is inadmissible. ⁴ The chief reasons for this general rule of inadmissibility are that the statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant's demeanor while making the statements. (1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, § 558, p. 533; see Williamson v. United States (1994) 512 U.S. 594, 598, 114 S.Ct. 2431, 2434, 129 L.Ed.2d 476, 482 [discussing theory behind federal hearsay rule].)

Section 1230 codifies an exception to the general rule for declarations against interest. It 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, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."

"When hearsay evidence is admitted it is usually because it has a high degree of trustworthiness. [Citations.] Thus, declarations against pecuniary or proprietary interest are admitted because they are unlikely to be false. [Citation.] A declaration against penal interest is no less trustworthy." (People v. Spriggs (1964) 60 Cal.2d 868, 874, 36 Cal.Rptr. 841, 389 P.2d 377.) In order to exclude untrustworthy statements, however, "[t]he statement must be so far contrary to the declarant's interests 'that a reasonable man in his position would not have made the statement unless he believed it to be true.' [Citations.]" (1 Witkin, Cal. Evidence, supra, The Hearsay Rule, § 691, p. 677; see Williamson v. United States, supra, 512 U.S. at p. 598, 114 S.Ct. at p. 2434, 129 L.Ed.2d at p. 482 [discussing similar requirement in Fed. Rules Evid., rule 804(b)(3), 28 U.S.C.].) Moreover, the declarant must be unavailable as a witness (§ 1230; People v. Smith (1970) 13 Cal.App.3d 897, 902, 91 Cal.Rptr. 786); the proponent of the evidence must use the in-court testimony of the declarant if possible (1 Witkin, supra, § 690, p. 677).

Appellant concedes that De Leon, Alarcon, and Fernandez were unavailable as witnesses due to their refusals to testify. A declarant who asserts his or her Fifth Amendment privilege not to testify is "unavailable" within the meaning of the statute. (People v. Gordon (1990) 50 Cal.3d 1223, 1251, 270 Cal.Rptr. 451, 792 P.2d 251; People v. Spriggs, supra, 60 Cal.2d at p. 875, fn. 3, 36 Cal.Rptr. 841, 389 P.2d 377; People v. Lopez (1980) 110 Cal.App.3d 1010, 1021, 168 Cal.Rptr. 378.) Appellant also correctly concedes that the statements carefully limited as they were to statements which were specifically disserving to the interests of the declarants constituted declarations against interest within the purview of section 1230. (People v. Leach (1975) 15 Cal.3d 419, 441 & fn. 17, 124 Cal.Rptr. 752, 541 P.2d 296; see Williamson v. United States, supra, 512 U.S. at pp. 598-601, 114 S.Ct. at pp. 2434-2435, 129 L.Ed.2d at pp. 482-483 [Fed. Rules Evid., rule 804(b)(3), 28 U.S.C.].)

Given the foregoing, it is clear the trial court did not abuse its discretion in admitting the challenged statements pursuant to section 1230. (See People v. Gordon, supra, 50 Cal.3d at pp. 1250-1251, 270 Cal.Rptr. 451, 792 P.2d 251 [applying abuse of discretion standard].) Despite the fact the statements met the requirements of that statute, however, appellant contends his Sixth Amendment rights to...