Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F10979
SCOTLAND , P.J.
Following the denial of his motion to suppress evidence of marijuana found in his residence during a warrantless search, defendant Jeremiah Gressett was convicted by a jury of possessing marijuana for sale.
On appeal, defendant (1) contends the trial court wrongly excluded evidence of an out-of court statement that defendant’s girlfriend, Kaitlin Redmond, made to defense counsel indicating some of the marijuana belonged to her; (2) argues the court erred when, after Redmond asserted her right against self-incrimination and was unavailable to testify, it allowed in evidence Redmond’s prior testimony at the suppression hearing--in which she denied she told a detective that defendant was selling marijuana--and then permitted the prosecutor to impeach Redmond’s prior testimony by having the detective tell jurors that Redmond did say defendant was selling marijuana; and (3) asks us to examine the sealed record of an in camera hearing and determine whether the court properly denied defendant’s motion for discovery of personnel records of a law enforcement officer.
As we will explain, only the second contention has merit. Concluding that defendant was prejudiced by the introduction into evidence of Redmond’s prior testimony so it could be impeached without affording defendant an opportunity to question Redmond at trial, we shall reverse the judgment.
FACTS
Law enforcement officers, including Detective Steve Buccellato, went to defendant’s residence in response to a report that persons were breaking into the home. At the front door, Buccellato spoke with defendant, who confirmed that someone had broken into his house. Buccellato asked for, and received, permission from defendant to enter the residence and look around.
Going inside, Buccellato smelled “a strong odor of marijuana” and looked through the home to see who else was there. Defendant’s girlfriend, Kaitlin Redmond, and her child were found in a bedroom. Four other individuals were hiding in the residence.
In the closet of the master bedroom, which defendant admitted was his room, Buccellato found several containers holding marijuana totaling 480.93 grams, and also discovered 27 smoking pipes and several pieces of electronic stereo equipment. Defendant claimed he had a prescription for the marijuana, but said it was still at the doctor’s office.
The trial court precluded defendant from introducing Redmond’s out-of-court statement that some of the marijuana was hers. However, the court allowed the prosecutor to present evidence of Redmond’s out-of-court statement that defendant was selling marijuana.
Defendant testified, admitting the marijuana found in the closet was his, but claiming it was possessed for control of his chronic pain suffered as a result of automobile accidents. Asserting that he had seen physicians for his pain, defendant presented medical records supporting this position. He denied ever selling marijuana.
Both the People and defendant presented expert testimony regarding whether the marijuana was possessed for sale. The details of that testimony are set forth in part II of the discussion below.
DISCUSSION
I
Defendant contends “the trial court violated [his] due process right to present a defense when it excluded [Redmond’s out-of-court statement to defense counsel] that some of the marijuana belonged to [her].” He bases his contention on Evidence Code section 1230, as well as the right to present a defense, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. (Further section references are to the Evidence Code.)
The People retort that we should “summarily reject” the claim of error because, in the People’s view, defendant forfeited it by not arguing in the trial court that due process of law and the right to present a defense were grounds to introduce Redmond’s out-of-court statement. The People’s makeshift argument ignores the meat of defendant’s contention. As he did in the trial court, defendant argues on appeal that the court erred in ruling the statement did not qualify as a declaration against penal interest. The fact that defendant now adds gravy by citing the Sixth and Fourteenth Amendments neither adds to nor detracts from the meat of his claim that Redmond’s admission that some of the marijuana was hers was covered by section 1230 and should have been allowed in evidence. The claim of error is not forfeited by defendant’s effort on appeal to spice it up with constitutional seasoning.
Therefore, we turn to the merits of defendant’s contention. The issue arose as follows.
During trial, defense counsel explained to the court that Redmond had told him the previous day she thought she needed a lawyer. When counsel asked why, Redmond replied that some of the marijuana was hers but did not say how much. Counsel sought to have Redmond’s statement admitted as a declaration against her penal interest. (§ 1230.)
After hearing extensive argument, the trial court excluded Redmond’s statement, finding that it had little probative value as a declaration against penal interest because there was no chance the statement would actually have subjected Redmond to prosecution for possession of marijuana, and the circumstances under which the statement was made rendered it unreliable.
Section 1230 provides in pertinent part: “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 . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Redmond’s exercise of her privilege against self-incrimination rendered her “unavailable” within the meaning of section 1230, and neither party claims otherwise.
In defendant’s view, the remaining two factors--the statement was reliable and against Redmond’s penal interest--are shown by it being “genuinely self-inculpatory” in that it could have led to her arrest and prosecution for possession of marijuana. We are not persuaded.
A statement should not be considered a reliable declaration against penal interest “‘“solely because it incorporates an admission of criminal culpability.”’” (People v. Lawley (2002) 27 Cal.4th 102, 153, italics in original.) The statement must have been made under circumstances such that a reasonable person in the declarant’s position would not have made the statement unless he or she believed it to be true. (§ 1230.)
The trial court did not abuse its discretion in finding Redmond’s statement had little probative value because there was little, if any, likelihood of her being prosecuted based on her statement. As the trial court pointed out, the statement did not “genuinely subject[] [Redmond] to any risk of criminal liability because the only evidence really against her is the statement, and the case itself is such . . . that based upon the evidence I have heard, and we’re now in the last day of trial, the district attorney would not be able to establish a case which has any reasonable prospect of achieving a conviction against Ms. Redmond.” The court also correctly noted that it was not against Redmond’s pecuniary interest to make the statement; rather, “it arguably advance[d] her pecuniary interest insofar as her statement is offered to promote the prospect of a not-guilty verdict” for her “fianc[é].” And the court reasonably concluded the statement Redmond possessed some marijuana did not put her at “any risk of becoming the object of hatred, ridicule or social disgrace in the community.”
Indeed, the fact Redmond did not say how much of the marijuana purportedly was hers would have made it difficult for the People to prove beyond a reasonable doubt that she possessed more than 28.5 grams of marijuana, an amount for which the maximum penalty is a $100 fine. (Health & Saf. Code, § 11357, subd. (b).)
The trial court also did not abuse its discretion in finding the statement was unreliable. As the prosecutor pointed out, the statement was inherently suspicious due to (1) its timing--on the last day of trial, (2) the fact that it was “substantially different” than what Redmond told officers at the scene and different than her prior statements to the public defender’s office, and (3) Redmond had “gone from a girlfriend of just a couple of months to [defendant’s] fianc[ée] who is living with [him],” and thus had a motive to “try to take the blame . . . for a loved one”--particularly because she apparently was “without a rap sheet” and would not be exposed to any meaningful threat of punishment. To this we add that when she made the statement, it was apparent that Redmond knew she could not be cross-examined about it because she would assert her right against self-incrimination. In light of all these circumstances, we cannot find any fault with the court’s ruling that this was not a situation where a reasonable person in Redmond’s position would not have made the statement unless she believed it to be true; instead, as the court stated, “under the overall context of this case, it’s entirely logical and indeed probably likely that a person would make that statement whether or not it’s true in order to advance the interest of her fianc[é], the defendant here.”
In sum, because the trial court was entitled to conclude that the statement was not truly against Redmond’s penal or pecuniary interests and, in any event, it was said under circumstances that made it unreliable, the court properly excluded the statement because it did not satisfy the requirements of section 1230.
II
Next, defendant contends “the trial court violated [his] confrontation rights under the Sixth Amendment when it admitted prior statements made by [Redmond] without affording [defendant] an adequate opportunity to cross[-]examine her.” The issue arose as follows.
At the suppression hearing, Detective Buccellato testified that defendant gave the officers consent to enter his residence to look around, and in doing so he discovered the marijuana in defendant’s closet. Defendant responded by calling Redmond as his witness, and she testified that defendant did not give consent.
On cross-examination of Redmond, the prosecutor asked her whether on the night of the search she told any law enforcement officers that defendant was selling marijuana. Defense counsel objected on grounds of lack of relevance and the questioning was going to “discovery . . . which [counsel was] not allowed to do.” The court overruled the objections, stating the evidence was being received only for the purpose of impeachment, i.e., whether Redmond had a “bias, interest or motive” to testify there was no consent. Redmond denied making statements that the prosecutor attributed to her (see fn. 2, ante). Defense counsel asked no further questions of Redmond, and no further witnesses testified at the suppression hearing.
The prosecutor asked Redmond whether she told Detective McEntire she knew defendant “sells marijuana”; “she see[s] people coming and going all the time from the house”; “when these people come over,” defendant “gives them small baggies of marijuana”; “sometimes people come over and just smoke . . . marijuana with him”; and Redmond had “tri[ed] to stay out of his marijuana selling.”
Because Redmond denied telling officers that defendant was selling the marijuana, and the prosecutor did not introduce any evidence at the suppression hearing that Redmond actually made such statements, the attempted impeachment failed. Consequently, defense counsel had no reason to, and thus no real opportunity to, question either Redmond or the officers about Redmond’s purported statements.
Having failed to elicit such evidence at the suppression hearing, the prosecutor nonetheless sought at trial to introduce Redmond’s purported statements for the purpose of establishing that defendant possessed for sale the marijuana found in his home. Of course, the prosecutor could not do so by introducing hearsay statements after Redmond asserted her Fifth Amendment right against self-incrimination and became unavailable to testify on the matter at trial. Thus, the prosecutor used the device of first seeking to introduce Redmond’s prior testimony at the suppression hearing, at which she denied telling an officer that defendant was selling marijuana, and then seeking to introduce the officer’s testimony that Redmond did make such statements.
According to the prosecutor, Redmond’s former testimony at the suppression hearing was admissible at trial pursuant to section 1291, which states: “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
As for the officer’s recount of Redmond’s purported hearsay statement, the prosecutor apparently believed it would be admissible pursuant to section 1235, which 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.”
Objecting to the introduction of Redmond’s prior testimony, defense counsel argued three reasons why it was inadmissible:
(1) Defendant’s “interest and motive was different at the [suppression] hearing than it is here today [at trial]. There was simply no focus [at the suppression hearing] on the guilt or innocence of [defendant]. There was not the same focus on [Redmond’s] statement. The reason [defense counsel] called her as a witness was to talk about the events that led up to the police’s entry into the house. [¶] . . . [¶] [Counsel] didn’t get particularly into anything beyond the fact [of the entry], and [Redmond’s purported statement] simply wasn’t the same issue that we dealt with at the [hearing on the suppression motion]”;
(2) The prior testimony was not offered by defendant within the meaning of section 1291, subdivision (a)(1), and;
(3) Admitting the evidence would deprive defendant of his Sixth Amendment right to confront the declarant, Redmond, because she asserted her right against self-incrimination and thus was unavailable to testify.
Overruling the objection, the trial court relied solely on subdivision (a)(1) of section 1291 as the basis for admissibility of the prior testimony. In the court’s view, the defense in effect offered the prior testimony in question by calling Redmond as a witness at the suppression hearing, thus necessarily subjecting her to cross-examination on whether she had a motive or bias to testify as she did. Concluding “the intention of this statute is not to allow the defendant to adduce testimony which is self-serving and to preclude the application of this section to any other testimony from the same witness which is not serving the defendant,” the court stated “it’s not for the Court to sort through [the former testimony] and decide that only that which is consistent with what the defendant’s objectives were in placing that witness on the stand should come in and not anything that was contrary to the defendant’s objectives.” In the court’s view, defendant’s right to confront a witness against him was satisfied because he had the opportunity “to question and examine Ms. Redmond” at the suppression hearing.
We disagree with the trial court’s analysis.
Section 1291, subdivision (a)(1) allows the introduction of prior testimony, as an exception to the hearsay rule, only if the “former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion . . . .” (Italics added.) Certainly, it was not defendant who, at the suppression hearing, asked Redmond whether defendant was selling marijuana that was seized from his residence. Rather, the question was tendered by the prosecutor in an effort to impeach Redmond’s testimony that defendant did not consent to the search of his home. Even if it can be said that defendant in effect offered the testimony within the meaning of the statute because he called Redmond as a witness, subjecting her to foreseeable cross-examination on any bias or motive to testify as she did, we conclude the prior testimony was not admissible pursuant to subdivision (a)(1) of section 1291 for reasons that follow.
Although it is not readily apparent how Redmond’s purported statement that defendant was selling marijuana tended to show her bias or motive to testify in his favor at the suppression hearing, it could be argued that having implicated defendant at the scene, Redmond was attempting to make amends by helping him at the suppression hearing.
For starters, the prosecutor elicited Redmond’s prior testimony at the suppression hearing not for the truth of the matter asserted--that, as Redmond purportedly told officers, defendant was in fact selling the marijuana at his residence--but for the limited purpose of impeaching Redmond’s testimony that defendant did not consent to the search of his residence. At trial, however, the evidence was elicited not for impeachment (indeed, Redmond did not testify at trial), but for the truth of the matter asserted (that defendant was selling the marijuana, as Redmond purportedly told the officers). Because the purpose for which the prior testimony was offered at trial was not the same as the purpose for which it was offered at the suppression hearing, we conclude it was not “former testimony . . . offered against a person who offered it in evidence in his own behalf on the former occasion . . . .” (§ 1291, subd. (a)(1).)
In any event, Redmond’s testimony at the suppression hearing that she did not tell officers defendant was selling marijuana went unchallenged by the prosecution. Given the prosecutor’s failure to present evidence at the hearing that Redmond made such a statement to officers, Redmond’s testimony on that question was immaterial because it did not tend to establish a bias or motive on her part. Indeed, Redmond’s testimony in this regard was not even elicited in compliance with section 770, which permits the introduction of “extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing” provided that the “witness was so examined while testifying as to give him an opportunity to explain or to deny the statement . . . .” (§ 770, subd. (a).) Because Redmond’s testimony regarding whether she said defendant was selling marijuana was elicited only as the foundation to introduce her extrinsic statement that he was, and the prosecutor then failed to present evidence that Redmond made such an extrinsic statement, Redmond’s testimony concerning the statement should have been “excluded” (§ 770) from evidence at the suppression hearing.
Under the circumstances, it is fundamentally unfair to allow the prosecutor at the subsequent trial to profit from her neglect in not properly seeking to impeach Redmond at the earlier suppression hearing. This is so because the method by which the prosecutor was permitted to introduce the damaging evidence that defendant’s girlfriend said he was selling marijuana (1) converted the testimony into proof of the truth of the matter asserted, whereas it had not been elicited for that purpose at the prior hearing, and (2) more importantly, prevented defendant from confronting that evidence against him. As defense counsel pointed out at trial, defendant’s interest and motive to question Redmond at the suppression hearing was not similar to what would have been the interest and motive for questioning her at trial, if she had been available as a witness. Because the prosecutor did not present evidence at the suppression hearing that Redmond said defendant was selling marijuana, there was no reason for defense counsel to question her about that purported statement. Consequently, the method used by the prosecutor to get the statement in evidence at trial after Redmond became unavailable as a witness effectively precluded defendant from confronting Redmond about the damaging statements attributed to her by the prosecution. The Sixth and Fourteenth Amendments do not permit such a result. (See Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]; People v. Giles (2007) 40 Cal.4th 833, 841.)
For this reason, Redmond’s prior testimony was not admissible pursuant to subdivision (a)(2) of section 1291.
This leads us to the question whether defendant was prejudiced by the trial court’s error in allowing the prosecutor to introduce Redmond’s prior testimony as a means of eliciting the detective’s testimony that Redmond stated defendant was selling marijuana from his residence. We shall conclude the error was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Pirwani (2004) 119 Cal.App.4th 770, 791.)
Detective Darryl Meadows, an expert witness on whether marijuana is being possessed for sale, testified as follows: Three to four “joints” could be made from one gram of marijuana. Chronic use would be two to four joints per day. Even assuming defendant used one gram per day, he had a year and one-half’s supply. The type of containers in which the marijuana was found would result in mold if the marijuana was not used in six months. The 27 pipes defendant possessed were additional indicia that the marijuana was possessed for sale. Since the typical medical marijuana patient possessed no more than an ounce of marijuana at a single time, coupled with the quantity, packaging, and the large amount of smoking pipes, Meadows opined that defendant possessed the marijuana for purpose of sale.
Defendant’s expert witness, Christopher Conrad, testified as follows: A heavy user of marijuana could consume 17 to 20 joints per day. Assuming each joint weighed .8 grams and allowing for waste, the marijuana possessed by defendant would produce about 500 joints, which would last approximately 70 days. There is nothing unusual about personal users buying large amounts of marijuana if they can obtain it at a price break. Several indicia of possession for sale were absent--there were no multiple bags premeasured into commercial weights, no pay-owe ledgers, no home solicitations intercepted by the police at defendant’s residence, and no nuisance complaints by neighbors. Conrad was unaware of any link having been stablished between the number of smoking pipes possessed and whether the marijuana was possessed for sale. Based upon the circumstances of this case, Conrad opined that defendant’s possession of the marijuana was for personal use, not for sale.
During their deliberations, the jurors asked for a reading of Detective McEntire’s testimony “regarding Katlin [sic] Redmond’s statement” given the night of the search, and which the court directed be read to them. The jurors also asked for further instruction on “[w]hat type of evidence would indicate an intention to sell?”
The trial court responded by reopening summation and allowing the prosecutor and defense counsel to argue the evidence. During this argument, the prosecutor pointed out Redmond’s statement was “very clear and convincing” that defendant was selling marijuana from his home.
The following day, the jurors informed the court that they were unable to reach a unanimous decision, and were split nine to three. The court told the jurors it was not necessary that they all agree in their respective evaluations of different parts of the evidence, but that they must unanimously agree the People have either proved or not proved their case beyond a reasonable before they could return a verdict. After returning for further deliberations at 2:15 p.m., the jurors delivered a guilty verdict at 4:00 p.m.
Thus, the case was obviously close. The jury’s request for a reading of Detective McEntire’s testimony regarding Redmond’s statement that defendant was selling marijuana, coupled with the prosecutor’s emphasis on that statement during reopened argument compels the conclusion that the erroneously admitted statement contributed to the verdict. Consequently, we shall reverse the judgment.
III
Prior to trial, defendant moved for the disclosure of any complaints in the personnel files of Detective Steven Buccellato and Officer Michael Liston relating to illegal arrests, acts of dishonesty, providing false information, unlawful search and seizure, or other improper conduct going to the veracity of the officers.
The trial court found a prima facie showing had been made as to Detective Buccellato, but not as to Officer Liston. In camera, the court reviewed Buccellato’s personnel file and concluded it contained no relevant information. Thus, the court denied defendant’s motion.
Defendant asks us to review the trial court’s in camera hearing to determine whether the court abused its discretion in finding that Detective Buccellato’s personnel file contained nothing relevant to his veracity.
We have done so and find no abuse of discretion by the trial court in denying defendant’s motion.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion.
We concur: NICHOLSON , J., RAYE , J.