Opinion
H045436
10-28-2019
THE PEOPLE, Plaintiff and Respondent, v. KEO TONY SARY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1645925, C1761175)
In July 2017, a jury convicted defendant Keo Tony Sary of vehicle theft with a prior conviction, identity theft with a prior conviction, possession of controlled substance paraphernalia, and providing a false name to a peace officer. The trial court found true allegations that defendant had a prior strike and had served a prior prison term. In August 2017, defendant pleaded no contest in another case to vehicle theft with a prior conviction and admitted allegations that he had a prior strike and had served two prior prison terms. The trial court sentenced defendant to six years in the first case and a consecutive two years in the second case, for a total prison term of eight years. On appeal, defendant contends the trial court prejudicially erred during his trial by admitting recordings of calls he had made from jail. Finding no prejudicial error, we affirm.
I. BACKGROUND
A. Case No. C1645925
1. Factual Summary
On the evening of August 29, 2016, San Jose police officers Mandeep Saini and Michael Harrington were patrolling on the East Side of San Jose. They noticed an Acura sedan with a commercial license plate. Such plates usually are associated with pickup trucks and semis. They ran the plate and discovered it was associated with a Chevy, not an Acura. Officer Saini testified, based on his training and experience, that people often attempt to conceal that a vehicle is stolen by changing the license plates. The officers stopped the vehicle. Defendant was driving. He provided the officers with a fake name. A search of the Acura yielded a glass pipe and numerous documents, including mail that was not addressed to defendant, a credit card in someone else's name, a check that had been tampered with, and a vehicle registration belonging to someone else. The officers ran the Acura's Vehicle Identification Number and learned that it was registered to T.P. and had been reported stolen on August 18, 2016.
To protect personal privacy interests, we refer to the lay witnesses by their initials. (Cal. Rules of Court, rule 8.90.)
T.P. testified that in August 2016 her Acura was stolen from outside her Modesto home. Around the same time, she realized the spare set of keys for that vehicle was missing. T.P. testified that she never let anyone borrow the car. She did not know or recognize defendant.
T.P.'s adult son, S.P., testified that he is friends with defendant. S.P. testified that in August 2016, defendant asked him for a ride from Modesto to San Jose. S.P. was out of town and arranged for his mother to lend one of her cars to defendant.
2. Procedural History
The Santa Clara County District Attorney charged defendant by information with vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5; count 1); acquiring or retaining possession of personal identifying information with intent to defraud with a prior conviction for the same crime (§ 530.5 subd. (c)(2); count 2); possession of controlled substance paraphernalia (Health & Saf. Code, § 11364; count 3); and providing a false name to a peace officer (§ 148.9; count 4). The information also alleged that defendant had a prior strike and had served a prior prison term (§§ 667, subds. (b)-(i) & 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise noted.
The case proceeded to a jury trial in late June 2017. On July 7, 2017, the jury returned guilty verdicts on all four counts after deliberating for approximately one hour. The court held a bench trial on the priors on July 10, 2017. At the conclusion of that trial, the court found true the strike and prior prison term allegations.
B. Case No. C1761175
The facts are taken from the probation report.
On the afternoon of April 4, 2017, officers with the Regional Auto Theft Task Force surveilled a vehicle that had been reported stolen. They observed defendant exit a house, enter the vehicle, and drive away. The officers followed, stopped defendant, and took him into custody.
2. Procedural History
On April 6, 2017, the Santa Clara County District Attorney charged defendant with one count of vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a); § 666.5). The complaint further alleged that defendant had a prior strike and had served two prior prison terms (§§ 667, subds. (b)-(i) & 667.5, subd. (b)). On August 8, 2017, defendant pleaded no contest to the vehicle theft charge and admitted the prior strike and prior prison term allegations in exchange for a two-year prison term.
C. Sentencing
At a December 15, 2017 hearing, the trial court denied defendant's motion to dismiss his prior strike conviction under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to a term of eight years in prison. In case No. C1645925, the court imposed a six-year aggregate term consisting of the middle term of three years on count 1, doubled to six years by the strike; and the middle term of two years on count 2, doubled to four years by the strike, to run concurrently. The court struck the additional punishment for the prior prison term. As to the misdemeanors, counts 3 and 4, the court imposed a concurrent 90-day jail sentence with 90 days' credit. In case No. C1761175, the court imposed a two-year term—one third the middle term, doubled—to run consecutive to the six-year term imposed in case No. C1645925. The court struck the additional punishment for the prior prison terms.
Defendant timely appealed in each case.
II. DISCUSSION
At defendant's trial in case No. C1645925, the prosecutor sought to introduce in rebuttal recordings of calls defendant had made from jail. Defendant objected that the calls lacked relevance and were unduly prejudicial under Evidence Code section 352, and that their admission would violate his Fifth, Sixth, and Fourteenth Amendment rights. The court admitted the calls, a ruling defendant now challenges.
A. Factual Background
A recording of "Call Number 15" was admitted and played for the jury. During that call, defendant can be heard saying: "The DA is trying to reach her . . . so we need to prepare her to confirm my story that I told the DA. . . . The DA tell me not to contact the victim . . . we need to get Vanessa to go talk to her so it won't track back to us . . . She needs to say that she didn't know that her son [lent] me the car . . . ." A recording of "Call [Number] 54" also was admitted and played for the jury. During that call defendant can be heard saying: "His mom didn't know so she reported it stolen." A recording of "Call [Number] 1" was admitted and played for the jury. That call was partially in English and partially in Khmer. Therefore, the court admitted a transcript of the call translated into English. According to that transcript, the man defendant was talking to said he had been subpoenaed to testify at defendant's trial. The man then said: "we say that we saw um that um the that he says to let us borrow the car and then c[o]me back." Defendant responded, "[y]es," and warned "don't talk anymore because . . . [my] lawyer said that the DA listen to what we talking on the phone . . . ." Defendant then told that man to "tell Chanthu that she has to say that too . . . ."
Recordings of two other calls—call No. 30 and call No. 49—also were admitted. Defendant does not address these calls on appeal. Accordingly, we do not consider them. --------
B. Legal Principles and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.) The Evidence Code defines "relevant evidence" broadly as "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210, italics added.) " '[T]he trial court has broad discretion to determine the relevance of evidence.' " (People v. Tully (2012) 54 Cal.4th 952, 1010.) "On appeal, 'an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88 (Benavides).)
A trial court has the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) For purposes of Evidence Code section 352, evidence is "prejudicial" if it " ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp).) " ' "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." ' " (People v. Scott (2011) 52 Cal.4th 452, 491.) "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352." (Kipp, supra, at p. 1121.)
C. Analysis
1. The Trial Court Did Not Abuse its Discretion in Concluding That the Calls Were Relevant
Defendant was charged with violating Vehicle Code section 10851, subdivision (a), which punishes "driv[ing] or tak[ing] a vehicle . . . without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle . . . ." Accordingly, the prosecutor bore the burden to prove beyond a reasonable doubt that defendant did not have T.P.'s consent to drive or take her Acura.
During call No. 54, defendant said: "His mom didn't know so she reported it stolen." Jurors reasonably could infer that defendant was admitting that T.P., the owner of the Acura, did not know he had the vehicle and had not consented to his driving or taking the vehicle. Accordingly, call No. 54 was relevant to a disputed fact.
On call No. 15, defendant tells the person he is speaking with to get a third person to persuade the victim "to confirm" the "story" defendant "told the DA," namely, "that she didn't know that her son [lent defendant] the car . . . ." On call No. 1, a potential witness rehearses what he is supposed to say at defendant's trial—that "he says to let us borrow the car and then come back." Defendant approves and tells the man to make sure Chanthu says the same thing. Defendant also cautions the man not to say anything else on the call because the DA can listen to his phone calls. Both of those calls strongly support an inference that defendant's "story" was false because if it had been true, it would have been unnecessary for him to attempt to influence witness testimony or to conceal his communications from the prosecutor. Therefore, call No. 15 and call No. 1 both are probative of whether defendant had permission to use the Acura.
Defendant says that the calls are not relevant because "the people identified in the calls did not testify." In fact, the victim, who is referenced in call No. 54, did testify. And we do not know the identity of the man defendant was speaking with on call No. 1. More importantly, the calls are relevant regardless of whether the individuals testified. As discussed above, the calls are probative of whether defendant had T.P.'s consent to take the vehicle, which is an element of the crime and was disputed at trial.
2. The Trial Court Did Not Abuse its Discretion Under Evidence Code Section 352
With respect to Evidence Code section 352, defendant argues the calls were inflammatory because they led the jury to believe that he "was attempting to encourage others to corroborate his story in some improper way." The jury certainly could have inferred from the calls that defendant was attempting to persuade witnesses to lie. And such an inference would have been damaging to the defense. But in the context of Evidence Code section 352, " ' "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638 ["The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence"].) Nor does undue prejudice under Evidence Code section 352 "occur merely because evidence is admitted that might hurt a party's case." (Smalley v. Baty (2005) 128 Cal.App.4th 977, 985.) Rather, "[u]ndue prejudice under Evidence Code section 352 occurs when the jury is emotionally inflamed against a party without regard to the issues in the case." (Ibid.) We acknowledge that jurors might seek to punish a defendant for attempting to tamper with witnesses. But we cannot say the trial court abused its discretion in concluding that the evidence was not substantially more prejudicial than it was probative.
3. Any Error was Harmless
Even if the trial court erred in admitting evidence of the jail calls, that error was harmless.
Generally, the admission of evidence in violation of state law, such as the Evidence Code, is reversible only upon a showing that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) A due process clause violation, requiring review under the more stringent federal standard set forth in Chapman v. California (1967) 386 U.S. 18, occurs where the admission of the evidence "makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error," and defendant makes no substantive argument as to why this case presents an exception to that general rule. (Benavides, supra, 35 Cal.4th at p. 91.) Therefore, we apply the Watson harmless error standard to the assumed error.
Under that standard, we ask whether there is " 'a reasonable chance' "—which is " 'more than an abstract possibility' " but need not be " 'more likely than not' "—that a result more favorable to defendant would have been reached had the jail calls not been admitted. (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.) There is not.
The Acura's owner reported the vehicle stolen on August 18, 2016. She testified at trial that the vehicle was stolen. She further testified that, as a general matter, she never allowed anyone to borrow it and, specifically, she had never seen defendant and had not allowed him to drive it. Police stopped defendant in the Acura more than a week after it was reported stolen. The license plate had been switched, which Officer Saini suggested was an indication that the vehicle had been stolen. Defendant lied about his identity to police. Given the foregoing evidence, which strongly supported the guilty verdict on count 1, it is not reasonably probable that even a single juror would have harbored reasonable doubt as to defendant's guilt had jurors not heard the jail call recordings.
III. DISPOSITION
The judgments are affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.