Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130139, Elisabeth Sichel, Judge.
Gerald J. Miller, 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Elizabeth A. Hartwig, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of one count of attempted premeditated murder (count 1—Pen. Code, §§ 664, 187); two counts of assault with a firearm (counts 2 & 3—Pen. Code, § 245, subd. (a)(2)); and two counts of false imprisonment (counts 4 & 5—Pen. Code, § 236). The jury further found that defendant personally discharged a firearm in his commission of count 1 and personally used a firearm in his commission of counts 2 through 5. (Pen. Code, §§ 12022.53, subd. (d), 12022.5, subd. (a).) On appeal, defendant contends the court committed reversible error in admitting defendant’s girlfriend’s preliminary hearing testimony in violation of his right to confrontation and pursuant to the former testimony exception to the hearsay rule. (Evid. Code, § 1291.) We find no error. Furthermore, even were we to assume error, it was clearly harmless. The judgment is, therefore, affirmed.
All further statutory references are to the Evidence Code unless otherwise indicated.
I. FACTS AND PRODEDURAL HISTORY
Anthony Thompson and Brandon Jones testified for the prosecution. Thompson resided rent-free at the apartment of defendant and his brother, Christian Paul Knox (Paul), beginning in early 2006. Defendant’s girlfriend, Yalonda Miles, moved in sometime thereafter. Thompson testified that while he lived there he sold drugs for defendant. Defendant failed to pay Thompson for his services despite agreeing to do so. At some point, defendant and Thompson became embroiled in an argument regarding Thompson’s use of defendant’s clothes without defendant’s permission. Defendant thereafter requested that Thompson move out of the apartment, which he did.
Thompson, his friend Jones, and Miles formulated a plan to steal money from defendant when he was not home. The plan involved Miles calling Thompson when defendant was not home so that Thompson and Jones could come over to the apartment and take defendant’s money.
On March 24, 2006, Miles telephoned Thompson, informing him that defendant was gone from the apartment and that Thompson should come over. Thompson and Jones immediately went over to the apartment and Miles let them in. Miles led them into defendant’s bedroom, where they took some of defendant’s money. Miles then led them into the master bedroom where defendant and LaKeith McCoy jumped out of hiding while pointing pistols at both Thompson and Jones. Defendant and McCoy ordered Thompson and Jones into the living room and told them to lay on the ground. Defendant and McCoy discussed killing them and dumping their bodies in a canyon. At some point, Thompson got up and ran through the door to the outside. Miles grabbed Thompson’s arm as he did so. Defendant then shot Thompson in the lower back. Thompson continued running until he passed out in front of a police car.
The People also submitted the testimony of Detective David Street and the preliminary hearing testimony of defendant’s girlfriend, Yalonda Miles. It is this testimony which is the subject of the appeal, and shall be discussed later.
Defendant testified on his own behalf. He stated that Miles told him that defendant could not trust Thompson because Thompson was planning on burglarizing him. At some point, Miles informed defendant that Thompson was on his way over to the apartment. In order to determine what Thompson was doing, defendant and McCoy hid in the bathroom with guns. Thompson and Jones showed up in the apartment and began searching through Paul’s possessions. Defendant and McCoy popped out, told Thompson to “freeze,” and pointed their weapons at the two. They all moved into the front room where McCoy told Thompson and Jones to lay on the floor. Defendant and McCoy simply tried to scare the two, they did not intend to kill them. While McCoy was on the phone, Miles yelled to warn defendant that Thompson was attempting to escape. Defendant turned around and the gun went off of its own accord. Defendant did not believe that anyone had been hurt. Defendant and McCoy thereafter left the apartment.
II. DISCUSSION
A. Preliminary Hearing Testimony of Yalondo Miles
The preliminary hearing testimony of Yalonda Miles was read into the record during the prosecution’s case-in-chief. The transcript itself was not marked as an exhibit. The preliminary hearing testimony is not from the preliminary hearing which took place before the magistrate in the case on appeal. We are left to surmise that a previous case had been filed against defendant and later dismissed, before the filing of the present matter. Neither the appellate briefs nor the record below provide any hint as to the derivation of the preliminary hearing testimony which is the subject of the present appeal.
At issue in the present appeal is the testimony of Yalonda Miles. At trial, Miles’s preliminary hearing testimony was read into the record. Defendant contends that the court erred in allowing this testimony into evidence. At the preliminary hearing, Miles was called to testify by defendant. On direct, Miles testified that, at the time of the shooting, defendant was not at the apartment. She called Thompson and told him to come over to steal from defendant as defendant was not there. Her motive for doing so was that she had had a disagreement with defendant the night before. Defendant was not hiding anywhere in the apartment. Jones and Thompson came over and began sifting through defendant’s and Paul’s possessions. Jones and Thompson began arguing; Miles heard someone pushed up against the wall and found Jones standing over Thompson holding a handgun. Thompson ran for the door, but before he could make it out, Jones shot him. Miles admitted that when she initially spoke with Detective Street, she told him that defendant was the one who shot Thompson. However, that was a lie; the reason she lied was because she was scared and believed she would otherwise end up in jail. On cross-examination, the People questioned Miles relative to her prior inconsistent statements to Detective Street. She testified that she invited Thompson to the house. She did not tell Detective Street that defendant was in the apartment on the morning of the shooting. She told Detective Street that she called Thompson in front of defendant and Kevin, another individual, although that is not what really happened. She did not invite Thompson over to the apartment while defendant remained there. Defendant was not in the apartment when she let Thompson in. She told Detective Street that defendant and Kevin were hiding in the bedroom, but that was a lie. She did not tell Detective Street that Kevin had a black semiautomatic pistol. She told Detective Street that the blue steel revolver was defendant’s. She basically told Detective Street exactly what actually happened, she just switched the individuals involved. She pinned the shooting on defendant because Thompson was from Edgemont and they could get killed for that. She told Detective Street that defendant and Kevin had Thompson and Brandon lay down on the floor while they pointed their guns at Thompson and Brandon. She told Detective Street that defendant and Kevin discussed taking the two men to the canyon and beating them up. She told Detective Street that defendant shot Thompson and then said that he didn’t mean to do it. She lied to Detective Street in order to protect her family. On redirect Miles testified that she pretty much told Detective Street what in fact happened, but just changed the characters. While she told Detective Street that defendant was involved, that was not the truth.
In the People’s case-in-chief, they called Detective Street to the stand. Detective Street’s testimony regarding his prior interview with Miles was admitted for impeachment only. The jury was instructed that it could not consider Miles’s statements to Detective Street for the truth of the matters stated therein, but that the statements were relevant only as they relate to evaluating the credibility of Miles’s preliminary hearing testimony. Detective Street testified that Miles reported that she, defendant, and McCoy engaged in a subterfuge in order to lure Thompson and Jones to the apartment in order to test Thompson’s loyalty to defendant. Miles called Thompson and told him to come over. Jones and Thompson came over, began sifting through defendant’s possessions, and then defendant and McCoy held them at gunpoint. Miles reported that defendant and McCoy compelled them to lay on their stomachs in the living room while discussing killing them and dumping their bodies. Defendant shot Thompson in the latter’s attempt to escape.
Defendant contends the court committed reversible error in admitting Miles’s preliminary hearing testimony in violation of his right to confrontation and pursuant to the former testimony exception to the hearsay rule. He maintains that the statements made by Miles on cross-examination at the hearing were neither offered by defendant nor did he have an opportunity to cross-examine Miles with an interest and motive similar to that he would have had had she testified at the trial. He further avers that the admission of Miles’s testimony prejudiced his trial to such a degree that his convictions must be reversed. We disagree.
B. Admission of Miles’s Former Testimony Did Not Violate Defendant’s Right to Confront Witnesses
“‘The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const.[,] art. I, § 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination.’ [Citation.] [¶] . . . [¶] . . . ‘Both the United States Supreme Court and this court have concluded that “when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.”’” (People v. Harris (2005) 37 Cal.4th 310, 332-333.) A prior opportunity for confrontation of a witness and that witness’s unavailability is dispositive of the admissibility of those statements at a later trial. (Crawford v. Washington (2004) 541 U.S. 36, 68 [124 S.Ct. 1354, 158 L.Ed.2d 177].) Here, defendant had the opportunity to confront Miles during his direct and redirect examination of her, and the parties stipulated to her unavailability at trial. Moreover, defendant himself put Miles on the stand; thus, Miles was not a prosecution witness. Hence, defendant’s right to confront the witnesses against him was preserved.
C. Miles’s Preliminary Hearing Testimony Was Admissible at Defendant’s Trial Pursuant to the Former Testimony Exception to the Hearsay Rule
We review a trial court decision on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Section 1291, subdivision (a) provides: “(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 [¶] (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.”
Here, Miles’s marriage to defendant and her prosecution for the underlying crimes made her unavailable to testify at trial. (§ 240, subd. (a)(1).)
At the preliminary hearing, Miles was called by and testified on behalf of the defendant. At a minimum, Miles’s preliminary hearing testimony on direct and redirect was admissible as prior testimony offered by defendant. (§ 1291, subd. (a)(1).) “Under subdivision (a)(1) of Evidence Code section 1291, a party’s previous direct and redirect examination of a witness called by him on the previous occasion is justifiably considered to constitute an adequate substitute for such party’s present right to cross-examine the declarant.” (People v. Salas (1976) 58 Cal.App.3d 460, 469.) To that extent, Miles’s testimony that she called Thompson and told him to come over to steal from defendant as defendant was not at the apartment and, as told to Detective Street, that defendant was the one who shot Thompson, were both properly admitted. (See § 1235.) Additionally, the testimony that she pretty much told Detective Street what in fact happened but just changed the characters was also fully admissible under section 1291, subdivision (a)(1).
Furthermore, the remainder of Miles’s preliminary hearing testimony was admissible pursuant to section 1291, subdivision (a)(2), because defendant had an opportunity to confront Miles with regard to her testimony and had a sufficiently similar motive for doing so. “[A] defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. [Citation.] The ‘“motives need not be identical, only ‘similar.’”’ [Citation.]” (People v. Harris, supra, 37 Cal.4th at p. 333.)
While it is true that, technically, defendant did not have the opportunity to “cross-examine” Miles because she was his witness, we do not read the statute so narrowly as defendant. Rather, we believe the opportunity to “examine” or “confront” the witness is all that is required. Here, defendant had the opportunity to examine Miles, knowing full well that the People would attempt to impeach her testimony with her contrary statements to Detective Street. Once the People had cross-examined Miles, defendant had another opportunity to more fully explore her testimony and rehabilitate it to the extent the People had impeached her. Thus, defendant had the opportunity to “cross-examine” Miles with regard to her testimony at the preliminary hearing.
The real question is whether defendant had a similar motive or interest in doing so. We believe he did. Defendant’s interest in examining Miles at the preliminary hearing was sufficiently similar to that he would have had at trial: to evince her exculpatory testimony and bolster her credibility with respect to that testimony. Upon cross-examination by the People, Miles was impeached with prior inconsistent statements made to Detective Street. On redirect, defendant, through his examination, attempted to explain Miles’s inconsistent statements and rehabilitate her to the extent possible. The fact that Miles already testified that her previous statements to Detective Street incriminating defendant were lies did not mean that defendant’s motive in examining her had evaporated. Rather, after the People’s cross-examination of Miles, defendant’s motive evolved to rehabilitate Miles’s exculpatory testimony to the extent that it had been impugned and to further belie her statements to Detective Street. While defendant may not have chosen to beat the proverbial dead horse, this in no way means that he was not afforded an adequate opportunity to examine Miles with regard to her prior statements to Detective Street. We therefore find that Miles’s preliminary hearing testimony was admissible as former testimony, and, to the extent she acknowledged her prior inconsistent statements to Detective Street, such testimony was properly considered for the truth of the matters stated therein. (§ 1235).
Defendant relies heavily on the Second Circuit’s decision in U.S. v. DiNapoli (2d Cir. 1993) 8 F.3d 909 (DiNapoli), for his contention that the admission of Miles’s preliminary hearing testimony was error because defendant’s motive for examining Miles at the preliminary hearing was not sufficiently similar to that he had at trial. We find that case both legally and factually dissimilar and, therefore, defendant’s reliance upon it unavailing. First, DiNapoli concerned the interpretation of a federal rule of evidence, not a California rule of evidence. While the two rules are substantially similar, DiNapoli is but persuasive authority for an interpretation of California’s statute. Second, the prior testimony at issue in DiNapoli was admitted at a grand jury hearing, not a preliminary hearing as in this case. A grand jury hearing is, by its very nature, not an adversarial proceeding as is a preliminary hearing; rather, it is an investigatory proceeding. (Id. at p. 913.) DiNapoli held that a prosecutor at a grand jury proceeding does not necessarily have the same motive to examine a witness as she would have at trial because she does not necessarily have any burden of poof, but is merely attempting to determine if an indictment is warranted. (Id. at pp. 912-913, 915.) In DiNapoli, the defendants had already been indicted. (Id. at p. 915.) Whereas here, defendant had no burden of proof at either proceeding and had yet to be held to answer. Third, the prosecution in DiNapoli had at least some reason not to examine the witnesses as to certain areas so as not to show its hand with regard to its possession of information acquired from confidential informants. (Id. at p. 911.) Likewise, the grand jurors had already communicated to the prosecutor that they disbelieved the witnesses’ testimony; thus diminishing the prosecutor’s motive to assiduously cross-examine those witnesses. (Id. at p. 915.) Here, no such motive for restraint appears. Fourth, even to the extent the prosecution does have the burden of proving probable cause to indict a defendant at a grand jury proceeding, DiNapoli found that the prosecution may have already met that burden, leaving little incentive to vigorously examine subsequent witnesses. (Id. at p. 913.) Here, defendant had no reason to relent in his examination of Miles. Defendant’s goal at both proceedings was to discount the prosecution’s case as emphatically as possible. Finally, we find some support in DiNapoli for our position here as it appeared to recognize that “‘direct and redirect examination of one’s own witness [is] the equivalent of cross-examining an opponent’s witness.’ [Citation.]” (Id. at p. 913, fn. 4.) Likewise, DiNapoli recognized that a failure to examine a witness with regard to statements the party believes to be false does not establish that the party lacked a similar motive, but rather, simply shows a recognition that it is substantially unlikely the witness will be persuaded from admitting the falsity of his testimony. (Id. at p. 914, fn. 5.) Thus, DiNapoli would appear to support the admissibility of Miles’s preliminary hearing testimony in this case.
D. Even if the Admission of Miles’s Preliminary Hearing Testimony Was Erroneous, Any Error Was Harmless
The erroneous admission of evidence in violation of a defendant’s confrontation clause rights is reversible unless the error was harmless beyond a reasonable doubt. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140 [119 S.Ct. 1887, 144 L.Ed.2d 117]; People v. Song (2004) 124 Cal.App.4th 973, 982.)
Here, while the inconsistent statements made to Detective Street bootstrapped upon the admission of Miles’s preliminary hearing testimony certainly strengthened the credibility of the accounts provided by Jones and Thompson in that all three accounts closely corresponded; nevertheless, defendant himself testified that virtually everything as testified to by Jones, Thompson, and Miles was true. Indeed, defendant’s defense was not that he was not present at the apartment at the time of the shooting, but rather, that the gun had gone off accidentally. The accounts provided by all four individuals were virtually identical except for the single fact of the intent behind the shooting. Miles’s preliminary hearing testimony was not at all probative of this fact because her testimony indicated that someone other than defendant was responsible for the shooting. Even while being impeached on cross-examination with her inconsistent statements that defendant shot Thompson, her testimony was consistent with defendant’s testimony that while he intended to scare Thompson and Jones, he did not intend to kill them. Miles could hardly be expected to testify as to defendant’s intent at the moment of firing. The jury simply disbelieved defendant’s incredible testimony that after threatening to kill the victims and dump their bodies in a canyon, the gun inexplicably went off at the exact moment Thompson attempted to escape, the fired bullet haphazardly hitting Thompson. Thus, any error was harmless beyond a reasonable doubt because no rational jury would have found defendant not guilty even without Miles’s preliminary hearing testimony.
III. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Miller, J.