Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. GA061568, David S. Milton, Judge
Marilee Marshall, 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.
Leonardo Diaz appeals from the judgment entered following his conviction by a jury of deliberate and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a)), carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)), and two counts of assault with a deadly weapon. (§ 245, subd. (a)(1).) As to the attempted murder conviction, the jury found true an allegation that appellant had personally used a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) As to the attempted murder conviction and one of the assault convictions, the jury found true an allegation that appellant had personally inflicted great bodily injury upon the victim, Sara Romero. (§ 12022.7, subd. (a).) As to each of the convictions, the jury found true an allegation that the offense had been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court found true allegations of one prior prison term (§ 667.5, subd. (a)), one prior serious felony conviction (§ 667, subd. (a)(1)), and two prior serious or violent felony convictions or juvenile adjudications within the meaning of California's “Three Strikes” law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) The trial court sentenced appellant to prison for 75 years to life.
All statutory references are to the Penal Code unless otherwise stated.
The matter was originally tried in February 2007. A mistrial was declared after the court found that the jury was "hopelessly deadlocked." A June 2008 retrial resulted in the current convictions. Appellant contends that, at the retrial, the court erroneously excluded Sara Romero's prior inconsistent testimony from the original trial. Appellant argues that the prior testimony was admissible under Evidence Code section 1235 and that its exclusion deprived him of his Sixth Amendment right of confrontation. We disagree and affirm.
Facts
Between midnight and 1:00 a.m. on May 22, 2005, Sara Romero parked her car on the street in front of her home in Glendale. Romero's husband was a passenger in the car. After Romero and her husband got out of the vehicle, appellant started walking toward them. Romero noticed that appellant had a shaved head and had the number "18" tattooed on the side of his neck. Appellant asked, " 'Where you guys come from?' " Romero replied that they had been to a wedding. Appellant approached Romero and stabbed her twice in the stomach with a knife. Appellant then swung the knife at Romero's husband but did not cut him.
Officer Minerva Gaines went to the crime scene and obtained a description of the suspect: a male in his 20's with a shaved head and small mustache who was about five feet, nine inches tall and weighed about 220 pounds, and who was wearing a light-colored shirt and dark pants. Gaines entered her patrol vehicle, drove into a nearby alley, and saw a person who matched the suspect's description. That person was appellant.
Gaines pointed her firearm at appellant and ordered him to put his hands up. Appellant walked toward Gaines and said, " 'Fuck you, bitch.' " Detective De Guzman arrived to assist Gaines. After a struggle, De Guzman and Gaines handcuffed appellant. Gaines patted appellant down and found a dagger in his pants pocket. The blade of the dagger appeared to have blood on it. Appellant shouted, " 'I'm Villain from Toonerville. You'd better recognize.' "
A criminalist confirmed that blood was on the blade of the dagger. The criminalist extracted DNA from the blood and concluded that the DNA "was a mixture of at least three people." Based on Romero's and appellant's DNA profiles, the criminalist opined that both of them could have contributed their DNA to the mixture, but the "predominant source D.N.A. is female, not male." The criminalist's most conservative probability estimate was 1 in 11,090. The criminalist explained:; "That means if I went out and sampled 11,090 people, I would expect at most one of those people to also be included in this [DNA] mixture." The criminalist emphasized the importance of the "at most" language: "I said at most, one person, meaning I'm not precluding the possibility [that] I would look at 11,090 people and not find anybody to be included in the mixture."
A detective showed Romero a six-person photographic line-up containing appellant's photograph. Romero immediately recognized appellant as the person who had stabbed her, but she told the detective that appellant "looked a little like" her assailant. She was afraid to make a positive identification because she believed that appellant was a gang member and "the gang members have their people outside." She subsequently positively identified appellant at a live line-up.
A gang expert testified as follows: Toonerville is one of three criminal street gangs in Glendale. The location where Romero was stabbed is within Toonerville territory. On four occasions, appellant admitted to the expert that he was a member of Toonerville. He said that his gang moniker was Villain. When a gang member asks a person, "Where are you from," he is "asking that person to identify [himself], as what gang [he is] from." The gang expert opined that appellant's crimes were committed for the benefit of Toonerville.
At the time of his arrest, appellant had a shaved head, mustache, and a goatee. The letters "VILLE" were tattooed on the right side of his neck. (4RT 1630) The letters " TVR," a Toonerville gang symbol, were tattooed on the left side of his neck.
Discussion
At the time of trial, appellant's head was not shaved. He still had a mustache and goatee. During direct examination, the prosecutor asked Romero if appellant's physical appearance in court was different from his appearance when he had stabbed her. Romero replied: "His head was shaved off. The beard was more [or] less the way he has it now. I don't remember, but it was more [or] less, but I do remember his face...." Romero subsequently testified that she did not "remember exactly" the "sort of facial hair" appellant had when he stabbed her, "but it seem[ed] to [her] that he had a small beard." The prosecutor asked, "But you are not certain about that?" Romero replied, "No, I don't remember."
During cross-examination, defense counsel tried to impeach Romero with prior inconsistent statements allegedly made by her while testifying at the original trial. Counsel asked Romero to read a page from the reporter's transcript of the original trial. Counsel then asked Romero: "Did you ever testify that the defendant - - you were asked specifically if the defendant, as you looked at him in court,... and you were asked to see if he had any differences in court, and what you said was that he has hair now in court and that he didn't have any hair or beard on his face like he does today. [¶] Did you testify to that, in that fashion?" Romero responded that she did not remember whether she had so testified. She further stated that she did not remember whether appellant had facial hair when he attacked her. Romero explained: "I don't remember everything. It has been three years, and there are many things that I have already forgot.
The following colloquy occurred:
"[Romero:] I am telling you that I don't remember.
"[Counsel:] Well, what don't you remember. You don't remember what the person looked like? You don't remember saying that?
"[Romero:] I remember his face but not every detail about him whether he had a beard or whether he had
"[Counsel:] Well, I'm asking you about his face, facial hair. That's what I'm asking you about. Did the person who attacked you have facial hair ma'am? When you looked at his face
"[Romero:] The thing is that I don't remember.
"[Counsel:] You don't remember if he did or not?
"[Romero:] I don't remember, and I don't remember having said what's in there [the reporter's transcript of her testimony at the original trial]."
A similar colloquy occurred during recross-examination:
"[Counsel]: The suspect that approached you, he did not have a mustache, and he did not have a goatee; true?
"[Romero:] I don't remember.
Ӧ]
"[Counsel: This person whose face that you looked at, ma'am, that you say you looked and focused on his face, did you see any facial hair on his face anywhere on that evening, ma'am?
"[Romero:] I don't remember."
Counsel requested permission to read Romero's prior testimony to the jury. Counsel argued that the prior testimony was admissible under the hearsay exception for prior inconsistent statements. But the trial court sustained the prosecutor's objection. The court explained: "[Y]ou [defense counsel] are asking her about things that occurred three years ago, and she says 'I don't remember,' then you attempt to refresh her recollection with proceedings [her testimony at the original trial] that occurred sometime subsequent to the event...." "For [the prior testimony] to be an inconsistent statement, the court must determine that it doesn't believe the witness's position that he or she no longer remembers." The court impliedly determined that Romero's claimed inability to remember was genuine.
Appellant contends that Romero's prior testimony was admissible under Evidence Code section 1235 and that its exclusion deprived him of his Sixth Amendment right of confrontation. Section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Evidence Code section 770 provides that a witness shall not be impeached with a prior inconsistent statement unless the witness has been afforded "an opportunity to explain or to deny the statement," or unless "[t]he witness has not been excused from giving further testimony in the action."
"The 'fundamental requirement' of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony. [Citation.]" (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) " 'Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However,... [w]hen a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]' [Ctation.] The requisite finding is implied from the trial court's ruling. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 711.)
Here, the trial court impliedly found that Romero's "I don't remember" responses were not evasive or untruthful. Accordingly, the trial court ruled that Romero's testimony at the original trial was not admissible under the prior inconsistent statements exception to the hearsay rule. We review the trial court's ruling for an abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
The trial court did not abuse its discretion. Whether Romero was being deliberately evasive involved a factual determination concerning her credibility. We defer to the trial court's implied finding that Romero was being truthful. "The trial court had the opportunity to view [Romero's] demeanor and therefore was in the best position to assess the credibility of her claimed nonrecollection." (People v. Coffman (2004) 34 Cal.4th 1, 78.) Moreover, the three-year lapse between the commission of the crimes and Romero's testimony provided a reasonable basis for concluding that her "I don't remember" statements were not evasive or untruthful.
Appellant argues that the trial court abused its discretion because it misstated the law by declaring "that if a witness says they do not remember making a statement, the statement is not admissible as a prior inconsistent statement unless the court finds that the witness is being untruthful about not remembering." The court did so declare, and its declaration misstated the law. A witness's prior inconsistent statement is admissible irrespective of whether the witness remembers making that statement. But the court's misstatement of the law does not mean that it erred in excluding Romero's prior testimony. Unless the court found that Romero was being deliberately evasive, her prior statement that appellant had no facial hair was not inconsistent with her trial testimony that she did not remember whether he had facial hair. Here the trial court impliedly found that Romero was not being deliberately evasive, and it did not abuse its discretion in so finding. Accordingly, the trial court did not err in excluding Romero's prior testimony, and its ruling did not violate appellant's right of confrontation. (People v. Gunder (2007) 151 Cal.App.4th 412, 418 ["In order to admit the prior extrajudicial statement of a forgetful witness as an inconsistent statement, the forgetfulness must be feigned"]; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609 ["Hearsay evidence is generally incompetent and inadmissible without statutory or decisional authorization, or absent stipulation or waiver by the parties"].)
The court declared: "If you believe that there's a prior inconsistent statement, and you just ask the person, didn't you say this at the prior time, and the person will say 'Yes,' 'No,' or 'I don't remember.' [¶] If the person says 'Yes,' well, then you have it. If the person says 'No,' then you can confront the person with a note. If [the] person says, 'I don't remember, well, you are kind of stuck with it.... Unless the court is persuaded that it doesn't believe the 'I don't know,' the person is intentionally taking the position, then the court can make a determination that it's a denial."
Even if the trial court had erroneously excluded Romero's prior testimony, the error would have been harmless beyond a reasonable doubt. The evidence against appellant was overwhelming. Furthermore, through the testimony of Officer Maria Vallerand, appellant was able to accomplish his purpose of impeaching Romero's direct examination testimony that "it seem[ed] to [her] that [appellant] had a small beard" when he stabbed her.
Vallerand interviewed Romero at the hospital about two hours after she had been stabbed. Vallerand asked Romero if her assailant had facial hair. Vallerand could not remember Romero's response, but she did not note in her report that the suspect had facial hair. Vallerand testified that, if Romero had said that the suspect had facial hair, she would have included this information in her report.
During closing argument, defense counsel declared that, based on Vallerand's testimony, he had impeached Romero: "I had to impeach [Romero] with the fact that she never said anything [about facial hair]. Vallerand asked her about facial hair.... First law enforcement officer that queried her about what did this person look like.... And Vallerand said, yeah, I asked and... [s]he said nothing about facial hair."
Abstract of Judgment
The abstract of judgment contains several clerical errors that must be corrected. The first page of the abstract shows that appellant was sentenced to 15 years to life on count 1, deliberate and premeditated attempted murder. In fact, the trial court sentenced appellant to 45 years to life on this count. The second page of the abstract shows that appellant was sentenced to the midterm of two years on count 5, carrying a concealed dagger. The trial court actually sentenced appellant to the upper term of three years. Furthermore, the second page fails to show that the sentence on count 5 is concurrent. In addition, the second page fails to show that on count 4, assault with a deadly weapon, the trial court stayed execution of the four-year sentence pursuant to section 654.
Disposition
The judgment is affirmed. The trial court is directed to correct the abstract of judgment as follows: on the first page, the abstract shall show a sentence of 45 years to life, instead of 15 years to life, on count 1 (deliberate and premeditated attempted murder); on the second page, the abstract shall show that the four-year sentence on count 4 (assault with a deadly weapon) is stayed pursuant to section 654 and that the sentence on count 5 (carrying a concealed dagger) is the upper term of three years, to be served concurrently. The trial court shall transmit a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: COFFEE, J., PERREN, J.