Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 06CF2520 of Orange County, M. Marc Kelly, Judge. Affirmed.
Katharine Eileen Greenbaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Donald Ostertag, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Michael Camarena (Michael) challenges his conviction for possession of heroin (Pen. Code, § 11350, subd. (a)). His sole contention on appeal is the trial court erroneously excluded two hearsay statements made by his father, David Camarena (David). Michael contends David’s hearsay statements were admissible under Evidence Code section 1230 as declarations against penal interest. We conclude the court erroneously excluded David’s statements, but the error was harmless. Accordingly, we affirm.
Because Michael, his father, and his sister share the same surname, we refer to each of them by their first names for convenience and clarity. We intend no disrespect. (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
All further statutory references are to the Evidence Code.
FACTS
On August 9, 2006, Michael and his sister, Joanne, went to the Theo Lacy Jail in Orange to deposit money in their brother’s jail account. A friend of Joanne’s accompanied them. Using Joanne’s keys, Michael drove Joanne’s car to the jail. He parked the car in front of the jail, left the keys in the ignition, and walked inside. Joanne and her friend waited in the car.
From his post inside the jail lobby, Sheriff’s Special Services Officer David Rapponotti watched Michael park the car and enter the jail. Rapponotti asked Michael for his driver’s license. Michael was not able to provide it, and Rapponotti eventually learned Michael’s driver’s license had been suspended. Rapponotti planned to cite Michael for driving with a suspended license and he sent a colleague to search the car. Rapponotti’s colleague searched the car and returned the car keys to Rapponotti, who noticed a small leather pouch attached to the key ring (key pouch). He opened the key pouch and discovered a plastic baggie containing heroin. During two separate interviews later that day, Michael admitted the heroin in the key pouch belonged to him. He also admitted he had used heroin two days before the incident.
At a pretrial hearing, Michael announced his intention to call David as a witness at trial. According to Michael, David would testify the heroin in the key pouch was his. David, however, asserted his Fifth Amendment privilege against self-incrimination. Michael then informed the court he would seek to admit David’s statements to a defense investigator and Joanne as declarations against interest. The defense investigator would testify he interviewed David two months after the incident. During the interview, David told the investigator the heroin belonged to him and that he had hidden it in the key pouch when he borrowed Joanne’s car because he thought a police officer would not look in the pouch. Joanne would testify she told David that Michael had been arrested on August 9, 2006, and, in response, David admitted the heroin in the key pouch was his.
The court concluded David’s hearsay statements did not qualify as declarations against penal interest under section 1230 because they were not sufficiently reliable or trustworthy. The court explained David was Michael’s father, and that “no statement was made to any law enforcement personnel until two and a half months after the arrest of the son, and then it wasn’t made to law enforcement personnel, it was made to his son’s lawyer’s investigator.”
The court referenced section 352 in its ruling, noting David’s motivation for making the statements “troubles the court under [section] 352” and “the court doesn’t feel [the statements] pass the reliability test under [section] 352, so [they] would be excluded.” We assume the court misspoke when it referred to section 352, because the prosecution did not move to exclude David’s statements pursuant to that statute. On appeal, the parties do not argue the court excluded the evidence under section 352. As a result, we need not determine whether section 352 provides a basis for excluding David’s statements.
At trial, Joanne testified David used her car keys and drove her car every day. She also testified the heroin in the key pouch did not belong to her and that she did not see her brother put heroin in the key pouch on the day of the incident. The parties stipulated David “is a heroin user.” During closing argument, defense counsel contended David, not Michael, put the heroin in the key pouch.
The jury found Michael guilty of possessing heroin and the court sentenced him to five years in state prison.
DISCUSSION
Michael contends the court committed prejudicial error by excluding David’s statements to the defense investigator and to Joanne. He argues David’s statements were “sufficiently credible” to be admissible under the hearsay exception in section 1230.
Standard of Review
We review the court’s decision to exclude David’s statements for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586 (Geier); People v. Brown (2003) 31 Cal.4th 518, 534 (Brown) [reviewing trial court’s trustworthiness finding for abuse of discretion]; People v. Greenberger (1997) 58 Cal.App.4th 298, 335 (Greenberger) [applying abuse of discretion standard].)
The Court Erroneously Excluded David’s Statements, but the Error Was Harmless
The parties agree David’s statements, if offered for their truth, are hearsay. (§ 1200, subd. (a).) As a general rule, hearsay evidence is inadmissible. (§ 1200, subd. (b).) The rationale for this rule is “that the [hearsay] 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.” (People v. Fuentes (1998) 61 Cal.App.4th 956, 960-961.)
Section 1230 codifies an exception to the hearsay rule for a declaration against penal interest. Under section 1230, an “‘out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest.’” (Geier, supra, 41 Cal.4th at p. 584.) The proponent of the evidence has the burden to establish: (1) the declarant is unavailable; (2) the declaration was against the declarant’s penal interest when made; and (3) “‘“the declaration was sufficiently reliable to warrant admission despite its hearsay character.”’” (Ibid; People v. Cudjo (1993) 6 Cal.4th 585, 607 [trustworthiness is a threshold requirement for admission of a statement under section 1230].) Because the parties agree David was unavailable to testify and his statements were against his penal interest, the only question before us is whether the court properly concluded David’s statements were not sufficiently trustworthy to warrant admission under section 1230.
Section 1230 provides in full: “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.”
In the context of declarations against interest, courts use the terms “trustworthy” and “reliable” interchangeably. (Compare Brown, supra, 31 Cal.4th at p. 536 [determining whether the “evidence bore sufficient indicia of trustworthiness”] and People v. Bullard (1977) 75 Cal.App.3d 764, 769 [“the heart of this exception to the hearsay rule is the . . . basic trustworthiness of the declaration”]; with People v. Duarte, (2000) 24 Cal.4th 603, 610-611 (Duarte) [to qualify for admission, the declaration against interest must be, among other things, “sufficiently reliable”] and People v. Shipe (1975) 49 Cal.App.3d 343, 354 [declarations against interest must be “clothed with indicia of reliability”].) We adopt the term “trustworthy.”
It is well settled the “focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.” (People v. Frierson (1991) 53 Cal.3d 730, 745 (Frierson).) There, is, however, “no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception.” (Greenberger, supra, 58 Cal.App.4th at p. 334.) As a result, courts consider a variety of factors to determine whether a statement is trustworthy, including “‘the words [and] the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’” (Cudjo, supra, 6 Cal.4th at p. 607; see also Duarte, supra, 24 Cal.4th at p. 614; Greenberger, supra, 58 Cal.App.4th at p. 334.) According to one appellate court, “the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others” and the “most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures.” (Greenberger, supra, 58 Cal.App.4th at p. 335.)
Here, David made his statements in a “most reliable circumstance.” (Greenberger, supra, 58 Cal.App.4th at p. 335.) He told the defense investigator in a noncoercive setting that he hid the heroin in the key pouch two days before Michael went to deposit money at the jail. And he made a similar confession to Joanne in an intimate setting. Under Greenberger, these statements appear to be sufficiently trustworthy to warrant admission under section 1230. (Greenberger at p. 335; see also People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175, called into doubt on another point in People v. Taulton (2005) 129 Cal.App.4th 1218, 1223 [confession was sufficiently trustworthy to qualify for admission under section 1230; defendant made the statements to a friend in a noncoercive atmosphere shortly after the shootings].)
David’s admissions did not occur in a situation where he was trying to improve his situation with the police. (Duarte, supra, 24 Cal.4th at p. 614.) There is no evidence in the record that David was a suspect, or that he had any reason to believe he was the focus of the criminal investigation. When David admitted the heroin belonged to him on two separate occasions, he did not try to “‘shift blame [to another person] or curry favor’ . . . with the authorities.” (Id. at p. 615.) Instead, he took full responsibility for the presence of the heroin in the key pouch, and he did so voluntarily and spontaneously in front of a family member and a defense investigator.
Without citing any authority, the People argue David’s statements are untrustworthy because they were made long after defendant was arrested. A comparison between the circumstances of this case, and those in Frierson, supra, 53 Cal.3d at page 745, is instructive. In Frierson, defendant’s friend, Louis White, told a defense investigator he shot the murder victim. (Id. at pp. 744-745.) Defendant argued White’s admission was a statement against interest under section 1230, but the trial court disagreed, “finding that the statement ‘lacks trustworthiness because it is not apparent from the evidence that [White] had a sufficient belief that he could be punished for his role in that crime at this late date . . . .’” (Frierson, at p. 745.) The California Supreme Court held the trial court’s exclusion of White’s statement was not an abuse of discretion because White made the confession to a defense investigator 14 years after the shooting, when he knew the defendant had already been convicted. (Ibid.)
Unlike the declarant in Frierson, who waited 14 years to confess, David told Joanne the heroin belonged to him the same day defendant was arrested. And two months later, presumably while the events were still fresh in his mind, David repeated his confession to the defense investigator. Furthermore, Michael’s case had not been adjudicated when David admitted the heroin belonged to him. As a result, Frierson has no application here and the People’s argument about the timing of David’s statements fails.
Relying on People v. Blankenship (1985) 167 Cal.App.3d 840, 849 (Blakenship), and People v. Chapman (1975) 50 Cal.App.3d 872, 880 (Chapman), the People argue David’s statements are untrustworthy because they were made to a defense investigator in the employ of Michael’s counsel and not to law enforcement. Neither Blankenship nor Chapman, however, advances the People’s argument.
In Blankenship, the trial court prevented defendant from testifying that a third party, Hahn, confessed to the crime because it concluded the proposed testimony was untrustworthy. (Blankenship, supra, 167 Cal.App.3d at pp. 844, 848.) The Court of Appeal affirmed. It explained that “nothing in the offer of proof concerning defendant’s proposed testimony provided an internal indication of veracity. As the proposed testimony was to come from defendant himself it was highly suspect both because defendant had a motive to falsify and because accurate details concerning the crime could be explained by defendant’s own knowledge and guilt rather than Hahn’s.” (Id. at p. 849.) Blankenship is inapposite. Here, the proposed testimony was not “to come from defendant himself” but from the defense investigator and Joanne. Accordingly, the Blankenship court’s rationale for excluding the testimony — Michael’s apparent motive to lie — has no application here.
The circumstances here are also clearly distinguishable from those in Chapman, where the trial court excluded a third party’s hearsay confession in a murder prosecution. (Chapman, supra, 50 Cal.App.3d at p. 877.) At trial, defendant moved to admit the hearsay statements of Napoleon Banks who, according to defendant, told two fellow inmates he shot the victim and that defendant was merely present during the incident. (Id. at pp. 877-878, 880.) The trial court concluded the evidence was untrustworthy and excluded it. (Id. at p. 878.) The appellate court affirmed, noting “[t]he record here strongly suggests the existence of a plan by three fellow prisoners to have one person take the blame for another’s crime under circumstances where the one taking the blame could not suffer any real detriment to his own interests.” (Id. at p. 880.)
Here, the record does not suggest “the existence of plan” to have David take the blame for Michael’s crime without subjecting himself to criminal liability. As discussed above, defendant was arrested immediately after Rapponotti found the heroin, and David told Joanne the heroin belonged to him later that day. This would have left little, if any, time for Michael and David to devise a plan to have David lie about the presence of the heroin in the key pouch.
Finally, the People suggest David’s statements are inherently untrustworthy because of the “father-son relationship.” We acknowledge most parents would be inclined to help their offspring. We cannot conclude, however, that David’s statements are untrustworthy simply because David is Michael’s father. To exclude David’s statements based on mere speculation that he would lie for his son would be akin to creating a “blanket exception to . . . section 1230 that declarations against penal interest are inadmissible if they were made by . . . any relative . . . of the defendant. To do so would represent judicial activism of the rankest sort since nothing in the language of section 1230 suggests any such exception. Indeed, an exception of this nature might be unconstitutional.” (People v. Sanders (1990) 221 Cal.App.3d 350, 399, fn. 9 (dis. opn. of Johnson, J.)
Our Supreme Court has held statements made by a defendant’s family member may be admitted as declarations against interest. (Cudjo, supra, 6 Cal.4th at p. 607.) In Cudjo, the police arrested defendant and his brother, Gregory, but charged only defendant. (Id. at 600-601.) At trial, the defendant tried to introduce the testimony of Gregory’s cellmate, Culver, who “was prepared to testify” that Gregory had confessed to the murder and described the crime in great detail. (Id. at pp. 604-606.) The trial court excluded Culver’s testimony because it concluded it was untrustworthy and lacked “‘indicia of reliability.’” (Id. at p. 606.) The court also excluded the testimony under section 352. (Ibid.)
The California Supreme Court held the trial court erred in excluding Culver’s testimony. (Cudjo, supra, 6 Cal.4th at pp. 607-608.) It suggested the trial court should have exercised its discretion to admit the statement because “[b]y Culver’s account, Gregory made his statement spontaneously, while alone with an acquaintance, within hours after the murder for which Gregory, who had no alibi, was in custody as a prime suspect” and because much of the evidence “was as consistent with Gregory’s guilt as with defendant’s.” (Id. at p. 607.) The court also concluded, however, that the trial court’s error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836-837 because it was not reasonably probable Culver’s testimony would have affected the outcome of the case. The Cudjo court noted the circumstantial evidence against the defendant was strong and that Gregory’s confession contradicted the physical evidence and “all other accounts [of the crime] Gregory had given.” (Cudjo, at p. 613.)
The Cudjo court also noted, however, that Culver may have had a “motive to lie” because he was defendant’s friend. (Cudjo, supra, 6 Cal.4th at p. 613.)
Here, any error in excluding David’s statements was harmless because it is not reasonably probable a different ruling would have affected the outcome of the trial. Contrary to Michael’s suggestion, the case against him was not “very weak.” Michael had possession and control over the car keys where the heroin was found. In addition, he admitted the heroin belonged to him in two separate interviews shortly after his arrest. And Michael conceded he had used heroin two days prior to the incident. That the heroin may have “belonged” to David is irrelevant, because ownership is not an element of the crime of possession. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially’”]; accord People v. Montero (2007) 155 Cal.App.4th 1170, 1175-1176.)
Furthermore, the court’s exclusion of the evidence did not prevent defendant from arguing he unknowingly possessed the heroin. Joanne testified her father used her car every day and that she had seen him with heroin needles. The parties stipulated David used heroin. During closing argument, defense counsel argued David, not defendant, put the heroin in the key pouch: “[T]he truth is [defendant] had no idea that that heroin was in that [key] pouch”; defense counsel also argued the explanation for the presence of heroin in the key pouch was that David, not defendant, put it there. The jury found defendant guilty. To do so, it must have relied on Michael’s confession (and his possession and control of the heroin in the key pouch) and rejected defense counsel’s attempt to shift blame to David.
For the first time on appeal, Michael argues the statement was also admissible as a spontaneous declaration under section 1240 and “the fact that it was also a spontaneous declaration strengthens the argument that the statement” was sufficiently trustworthy. We decline to address this claim because Michael did not raise this hearsay exception in the trial court. (People v. Livaditis (1992) 2 Cal.4th 759, 778 [proponent of hearsay must raise applicable exception before trial court]; see also People v. Ramos (1997) 15 Cal.4th 1133, 1177-1178 [“Nowhere in the record did defendant attempt to meet” the foundational requirements for hearsay exceptions].)
Therefore, we conclude the court’s exclusion of David’s statements was harmless error. (Brown, supra, 31 Cal.4th at pp. 538-539 [any error admitting statements was harmless in murder and robbery prosecution where “evidence of defendant’s guilt was overwhelming”; an eyewitnesses observed the crime and identified defendant and defendant confessed he “‘smoked the bitch’”]; see also People v. Bradford (1997) 15 Cal.4th 1229, 1325 [trial court’s exclusion of third party culpability evidence was harmless “[i]n light of the extremely strong evidence against defendant”].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.