Opinion
G053317
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. GILBERTO ORTIZ CARDENAS, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF2875) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Gilberto Ortiz Cardenas of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); all statutory citations are to the Penal Code unless noted). Cardenas contends the prosecutor committed Griffin error (Griffin v. California (1965) 380 U.S. 609 (Griffin)), the trial court erred in excluding as hearsay Cardenas's statements to the victims at the scene of the alleged burglary explaining why he was in their garage, and the court abused its discretion by denying his motion for mistrial based on a police officer's testimony he recognized Cardenas because of 30 to 40 prior meetings. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 23, 2015, Ray C. and his wife Angelica were eating dinner at their home in Placentia when they heard a noise that sounded like someone was trying to enter their attached garage. Ray left to investigate and saw a man, later identified as Cardenas, standing behind his pickup truck holding a container of Ray's tools he used in his flooring business. Ray kept the container in the back of the truck.
Cardenas "mention[ed] some names, that somebody told him to get the stuff" from the garage. Ray did not recognize the names, and had never spoken to anyone about borrowing his tools. Ray retrieved the tool container and he and Angelica told Cardenas to leave. Cardenas refused, fidgeted with his pockets, and kept trying to explain why he was there, mentioning several names. Ray felt Cardenas was not listening, almost "like he wasn't really all there."
Angelica retrieved her cell phone and returned to the garage. Cardenas was still there. He identified himself by name several times. At some point during the incident Cardenas asked, "Are you Ray?" Ray knew a person could hear from the garage what was being said in the dining room, and Angelica had repeatedly spoken her husband's name that evening.
Ray eventually pushed Cardenas out of the garage, but he remained outside talking to Ray. Angelica took two photographs of Cardenas and called 911. Cardenas walked away while she was on the phone.
Ray's truck had been ransacked, but nothing had been taken. Placentia police officers arrived a few minutes later. Officer Brian Conroy recognized Cardenas from Angelica's photos. About 90 minutes later, officers located Cardenas about one-half mile away standing next to a shopping cart in a driveway.
Cardenas spoke with officers at the police station. He denied having been in or near the couple's garage or having an altercation with anyone. Angelica and Ray both identified Cardenas at a showup and at trial.
The jury convicted Cardenas as noted above. The trial court found Cardenas had suffered three prior convictions within the meaning of section 667.5, subdivision (b)). The court imposed a five-year prison sentence, comprised of the four-year midterm for residential burglary and a one-year term for one of the prison priors. The court struck punishment for the remaining prior convictions.
II
DISCUSSION
A. No Griffin Error
Cardenas contends the prosecutor committed Griffin error (Griffin, supra, 380 U.S. 609) during rebuttal argument. The prosecutor initially argued: "Now I'd like to talk a little bit about the defendant's statements, his lies. Now, first, we have all this gobbledygook where he tells the homeowners about why he's there. They said it was confusing. They didn't know what he was talking about. They didn't believe it. It didn't sound true to them. So he's lying to the homeowners. Later, he's contacted by Officer Conroy, who he knows. And Conroy talks to him, and he denies even being in that garage. He denies being in any sort of altercation. Let's talk about this - this conversation with Conroy. He's with him in the street. He could have told him right away, 'Hey, you know what, I know what this is about. I think this thing went down at this garage. Total - total, you know, mistake of what happened. Here's what' - no. And then maybe he thought I don't want to mention it. Maybe -- who knows? But once he's actually been arrested, going down on it, he's already in a -- why not tell the officer about it then? Why not? You've already been arrested. You have nothing to lose. Why not -- if this is the truth, why not come out with it? He had every chance to. We heard that this is a 30-plus-minute chat with the . . . with Officer Conroy. He said it was casual in tone. He built up a good rapport with him. They're talking for a while. They're talking about people they both know. They discussed different kinds of beer that they like. They discussed trimming palm trees and the defendant working as a gardener. So they're talking for 30-plus minutes, and throughout this 30-plus minutes, where it's a casual, nonthreatening conversation, the defendant never gives up this bizarre story about being in that garage. And if that were the truth, if he really had been sent there and thought it was okay, you better believe that he's going to be telling the officer, 'Hey, look, Officer Conroy, it's all a mistake. Here's what went down. You know, . . . I think there must have been some kind of misunderstanding. Maybe I got the wrong house. I feel really bad. These people clearly weren't on board.' That's not what happened. That isn't what happened. If that were the true story, you better believe that he would have been explaining to Officer Conroy what happened."
Defense counsel argued: "No one is denying the fact that [Cardenas] was in that garage. No one is denying the fact that he had a drill case in his hand. No one is disputing that. Okay?" Defense counsel argued, "[T]his was all a misunderstanding. . . You heard evidence it was Mr. Cardenas's intent, when he entered that garage, to pick up the tool and that his friend told him to pick up this tool."
In rebuttal argument, the prosecutor responded, "So in his closing statement, [defense counsel] said a couple times, 'No one is denying that Mr. Cardenas was in the garage.' Well, that's just not true. Do you know who denied it again and again to the police? Mr. Cardenas. And one of the things I've said to you is that a reasonable explanation has to explain all the facts. And I didn't hear any explanation why, if this were true, if he had this was this misunderstanding, this mistake, I didn't hear an explanation why Mr. Cardenas wouldn't have tried to explain that to the officer." The court overruled a "burden shifting" objection when the prosecutor argued that "the defendant's story isn't reasonable. It doesn't make sense and it isn't supported by the evidence. And let me just point out, in terms of evidence, we have heard zero evidence of who this friend is, where they are, and we sure know that that friend never appeared in court."
Cardenas argues the prosecutor "commented that she didn't hear any explanation of why Mr. Cardenas wouldn't have tried to explain any misunderstanding to the officer. Of course the only time she could have been referring to when she didn't hear an explanation would be the trial. Her argument directly called into question appellant's failure to testify and explain to the jury about any misunderstanding he might have had about getting tools from the garage . . . . It had to be understood by the jury as a comment about appellant not providing an explanation. No one else could conceivably have testified about any misunderstanding occurring in appellant's thought processes."
Griffin prohibits a prosecutor from commenting, directly or indirectly, on the defendant's failure to testify. (People v. Brady (2010) 50 Cal.4th 547, 565-566 [Griffin bars prosecutor from referring to the absence of evidence that only the defendant's testimony could provide]; People v. Hughes (2002) 27 Cal.4th 287, 371-372; People v. Hovey (1988) 44 Cal.3d 543, 572 (Hovey) [prosecutor may comment on the state of the evidence].) In determining whether a prosecutor has committed Griffin error, the question is whether there is a reasonable likelihood jurors could have understood the prosecutor's comments to refer to the defendant's failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.) "[I]indirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt can be drawn therefrom, are uniformly held to constitute harmless error." (Hovey, at p. 572.)
We are not persuaded the prosecutor crossed the line. There was no direct reference to Cardenas's failure to testify. The prosecutor pointed out Cardenas denied being in or near the couple's garage or having an altercation with anyone during a lenthy conversation with Officer Conroy, but Cardenas failed to mention a friend told him to take tools from the garage. The prosecutor properly argued this failure undermined the defense's argument at trial Cardenas was operating under a misunderstanding and had no intent to steal. (People v. Mincey (1992) 2 Cal.4th 408, 446-447 [prosecutor may properly criticize a defendant's pretrial statements to police even though the defendant does not testify at trial]; People v. Medina (1995) 11 Cal.4th 694, 755-756 [prosecutor's comments directed to the general failure of the defense to provide an innocent explanation for incriminating circumstances and remarks contained no references, express or implied, to the defendant's own silence].)
At worst, the prosecutor indirectly referenced Cardenas's failure to testify. But she did not argue this failure supported an inference of guilt. The trial court instructed the jury to "not consider, for any reason at all, the fact that the defendant did not testify." Evidence of Cardenas's guilt was strong. He was caught in a stranger's garage holding a tool box taken from the victim's truck. The evidence strongly suggested he entered the garage with the intent to steal. Any conceivable Griffin error was harmless beyond a reasonable doubt. B. Exclusion of Cardenas's Statement as Hearsay Not Prejudicial Error
During Angelica's cross-examination, defense counsel asked if Ray questioned Cardenas about why he was inside their garage. Angelica said, "yes." Defense counsel attempted to elicit Cardenas's response to Ray's questions, but the trial court sustained the prosecutor's hearsay objection. Defense counsel informed the court that Cardenas responded by explaining his friend had sent him to get the tools, and therefore what the friend told Cardenas was offered for a nonhearsay purpose - to show the effect on the listener, Cardenas, and to explain why he went into the garage. Counsel argued the statement was nonhearsay because it went "to his intent about why he entered the garage." The trial court disagreed: "It's clearly being offered so he can present his defense and not testify. So the only effect it has here is to explain his conduct and for the jury to believe it. So it's clearly for the truth of the matter asserted."
On appeal, Cardenas asserts his statement a friend told him to retrieve the tools was admissible under Evidence Code sections 1241 and 1250. Preliminarily, he forfeited these claims by failing to cite these sections to the trial court. (People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4 [party may not claim on appeal hearsay exceptions required trial court to admit statements when party failed to raise those exceptions in trial court]; People v. Livaditis (1992) 2 Cal.4th 759, 778 [proponent of hearsay must alert trial court to exception relied on and has burden of laying proper foundation]; see People v. Fauber (1992) 2 Cal.4th 792, 854 [where hearsay objection sustained at trial, defendant cannot contend, for first time on appeal, that statements were relevant nonhearsay evidence].)
Cardenas acknowledges his trial attorney argued his statement a friend sent him to retrieve the tools was nonhearsay and therefore admissible, but did not identify specific hearsay exceptions, although alluding to them by referring to Cardenas's intent in entering the garage. Cardenas contends, however, "[i]t really makes little difference since it is admissible either way and the reported cases have said it makes little difference how such statements are characterized."
Adopting Cardenas's analysis would result in the appellate court determining whether a proper factual foundation supported the hearsay exceptions not raised in the trial court. But the trial court must make these calls. For example, Evidence Code section 1241, also known as the res gestae or contemporaneous statement exception to the hearsay rule, provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and [¶] (b) Was made while the declarant was engaged in such conduct." (See Assem. Com. on Judiciary com., 29B pt. 4 West's Ann. Evid. Code (2015 ed.) foll. § 1241, p. 397 ["[W]here a person's conduct or act is relevant but is equivocal or ambiguous, the statements accompanying it may be admitted to explain and make the conduct or act understandable"].) The proponent of the evidence preliminarily must show that the elements of section 1241 have been met before the court will admit the hearsay statement. "'Declarations, to be a part of the res gestae, are not required to be precisely concurrent in point of time with the principal fact, if they spring out of the principal transaction, if they tend to explain it, are voluntary and spontaneous, and are made at a time so near it as to preclude the idea of deliberate design, then they are to be regarded as contemporaneous, and are admissible.'" (People v. Costa (1953) 40 Cal.2d 160, 168, italics added.) The failure to rely on the hearsay exception under section 1241 prevented the trial court from determining whether Cardenas met his burden to show preliminarily whether his statement was spontaneous and therefore trustworthy. (See Evid. Code, § 405.) We note, Cardenas's statement to the homeowners after they confronted him in their garage and in possession of their property does not on its face demonstrate spontaniety. (See also 1 Jefferson, Cal. Evidence Benchbook (Cont. Ed. Bar 4th ed. 2016) Spontaneous and Contemporaneous Statements, § 13.13, p. 239 [where declarant's conduct is finished subsequent statements explaining his equivocal conduct do not fit within the hearsay exception and must be excluded as inadmissible hearsay].) But the trial court was in the best position to make this call.
The same problem exists in Cardenas's claim the trial court erred in not admitting Cardenas's statement under section 1250. That section provides: "(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." Section 1252 provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." Whether circumstances reflect trustworthiness "'requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.'" (People v. Edwards (1991) 54 Cal.3d 787, 819-820.) "[S]tatements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are '"made at a time when there was no motive to deceive."'" (Id. at p. 820 [noting a defendant in a criminal case may not introduce hearsay evidence in lieu of testifying to avoid cross-examination].) The failure to specifically rely on this hearsay exception prevented the trial court from determining whether Cardenas established the requisite preliminary facts, although the court's comments show it likely would have found Cardenas's statement untrustworthy and therefore inadmissible under section 1252. From our vantage point, Cardenas's self-serving exculpatory statement to Ray and Angelica after they found him in their garage with their property lacked indicia of trustworthiness.
Finally, any error in excluding Cardenas's statement was harmless. Ray followed Angelica's testimony by testifying that when he confronted Cardenas in his garage, Cardenas mentioned "some names, that somebody told him to get the stuff from my garage." The defense relied on this statement to argue Cardenas's presence in the garage was the result of a misunderstanding: "[T]his was all a misunderstanding. . . .You heard evidence it was Mr. Cardenas's intent, when he entered that garage, to pick up the tool and that his friend told him to pick up this tool." There is no reasonable probability Cardenas would have achieved a more favorable result in the absence of the alleged error in excluding Angelica's testimony. (People v. Watson (1956) 46 Cal.2d 818, 836; Evid. Code, § 354 [verdict shall not be set aside or judgment reversed because of the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice].) C. Denial of Mistrial
Before trial, the defense moved to exclude police officer testimony regarding prior contacts or arrests involving Cardenas based on lack of relevance and Evidence Code section 352. The prosecutor argued the evidence was relevant because a police officer recognized Cardenas in a photograph taken by the victim and persons innocently could come into contact with the police. The prosecutor offered to admonish the officer not to mention the nature of his prior contacts with Cardenas. The trial court ruled the police officer could not mention "prior contact" with defendant, but could say he had previously "met" Cardenas and knew who he was.
Officer Conroy testified Angelica showed him the photos she took of the man in her garage. He recognized the person. The prosecutor asked, "And who did you recognize the person to be?" Conroy answered, "I recognized him as Gilberto Ortiz Cardenas." The prosecutor asked if he had previously met Cardenas, and Conroy said he had. The prosecutor asked how many times the officer had met Cardenas. Defense counsel objected on the grounds of relevance and section 352. The court overruled the objection, and Conroy answered, "Approximately 30 to 40 times." The prosecutor stated, "So you're pretty familiar with Mr. Cardenas?" Conroy answered, "Yes, I am." Conroy then identified Cardenas in court.
After Conroy's direct testimony and outside the jury's presence, defense counsel stated the court had ruled the officer was only allowed "to say that he recognized Mr. Cardenas because he had met him," and argued the jury could infer from the number of contacts, 30 to 40, that those were "prior police contacts due to wrongdoing." Counsel "ask[ed] for an admonishment or I would ask for a mistrial because that testimony was heard by the jurors."
The trial court responded it "was a little surprised by the number, but nobody ever asked me to put a cap on it. I think - I don't know if the People were surprised or not. All I ruled on is, hey, you're going to use the term 'met' and not put it in the criminal context. 30 to 40 times. Most people in their whole lives, I'll acknowledge, don't meet police officers 30 or 40 times. The reason I allowed the number without knowing the answer or requiring an answer in advance was that part of it is eyewitness identification and so the officers are eyewitnesses when they go, oh, that's Gilberto Cardenas. So that's why I did what I did. Does it rise to the level of 352; that is, does it evoke an emotional reaction against the defendant as an individual? I don't think it rises to that level. So under a 352 analysis, your motion for mistrial is denied. I'll let the answer stand. In fact, I think if I tried to strike it, all it would do is bring more attention to it."
A motion for mistrial should be granted when a defendant's "chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283 (Ayala).) "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]'" (People v. Collins (2010) 49 Cal.4th 175, 198.) An appellate court reviews a trial court's denial of a mistrial motion under the deferential abuse of discretion standard. (People v. Maury (2003) 30 Cal.4th 342, 434.)
Cardenas argues "that the officer had simply met Cardenas previously . . . would not have raised an emotional bias against Cardenas and would not logically have infected the fact-finding process. However, testimony that the officer had met Cardenas 30 to 40 times immediately identifies Cardenas as a person having been arrested and investigated many times previously by the police. In the absence of some other logical explanation, such as the two people being neighbors or going to the same church, there is no other way that a citizen would have come into contact with a police officer that many times. Police officers do not tend to know well a wide range of citizens, just the criminals and suspects they engage on the streets."
Cardenas is undoubtedly correct the probative value of numerous meetings was outweighed by the potential for prejudice. (Evid. Code, § 352.) But we discern no abuse of discretion in denying the mistrial motion. Conroy did not imply the prior meetings involved criminal activity, and a reasonable juror would not necessarily draw that inference. (See People v. Bolden (2002) 29 Cal.4th 515, 554-555 [appellate court upheld denial of mistrial because it was doubtful a reasonable juror would infer from the fleeting reference to a parole office that defendant had served a prison term for a prior felony conviction and the incident was not significant in the context of the entire guilt trial]; Ayala, supra, 23 Cal.4th at p. 285 [trial court properly denied mistrial motion after witness testified he "hear[d] a lot about [the defendant] in prison"; witness's statement "made no suggestion that defendant was also in prison" and did not warrant a mistrial].) The incident was not significant in the context of the entire guilt trial. Cardenas does not take issue with the trial court's decision not to strike the testimony or admonish the jury. Finally, any potential error in not granting the mistrial motion after the officer's testimony was harmless based on overwhelming evidence of Cardenas's guilt.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.