Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge. Super.Ct.No. SWF021338
Victoria S. Cole, 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, Assistant Attorney General, Lilia E. Garcia and Raquel A. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Gregory Thomas, of receiving stolen property (Pen. Code, § 496d, subd. (a)). In bifurcated proceedings, he admitted having suffered a prior violation of Vehicle Code section 10851 (§ 667.5, subd. (a)) and a prior conviction for which he served a prison term (§ 667.5, subd. (b)). He was sentenced to prison for two years and appeals making a number of contentions. Because we reverse his conviction due to the erroneous exclusion of evidence, we need not address his remaining contentions.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
The owner of a 550 pound motorcycle parked the bike at his apartment complex around 10:30 p.m. on May 13, 2007 and later went to bed. The next day, it was not where he had parked it. When it was recovered by police, it was destroyed, as though it had been crashed or dropped.
Although this person did not actually own the bike—his father did—we shall refer to him as the owner for the sake of simplicity.
A police officer testified at trial that early that morning about one and one-fourth to one and one-half miles from the apartment where the owner had parked the bike, the officer passed a truck with the bike in the bed and pulled it over. Defendant’s dog was also in the bed of the truck. The driver of the truck, Gene Ramirez, came out of the truck, so the officer drew his gun and ordered Ramirez to put his hands in the air. Christopher Blodgett was sitting in the middle of the truck’s seat and defendant was next to the passenger window. All three were arrested and defendant was questioned at the station.
The officer testified that defendant said that he was at the home of a friend between midnight and 1:00 a.m. He said that Ramirez had told him something. Although defendant did not say what Ramirez had said to him was not true, the officer believed that whatever Ramirez had said to defendant was untrue. Defendant said it was Ramirez’s idea to go pick up the bike. All three left in Ramirez’s truck and traveled to east of the bridge on Cedar Street to pick up the bike, which was sitting at the side of the road. All three loaded the bike onto the bed of Ramirez’s truck. As they were doing so, people came towards them. Defendant felt uncomfortable and Ramirez said something to defendant which the officer, by the time of trial, knew was untrue. They drove to the home of a friend in Val Vista, then back towards San Jacinto, where they were stopped by the officer.
The officer testified, over objection by defendant, that he did not believe defendant’s statement that the bike was loaded up on Cedar Street.
The officer testified that this place was less than one mile from the bike owner’s apartment.
The officer testified that defendant, Ramirez and Blodgett each gave a different address for this home.
The following colloquy occurred between the officer and defense counsel,
Defendant did not testify and offered only Ramirez’s plea form in which Ramirez plead guilty to unlawfully taking and driving a vehicle.
Because we reverse due to the trial court’s erroneous exclusion of evidence under California law, we need not address defendant’s remaining contentions.
1. Exclusion of Evidence
Before trial began, the People stated that it was their intention to introduce defendant’s statements that earlier in the evening of May 13, 2007, he was at a home with Gene Ramirez and Christopher Blodgett. They then went to Cedar Avenue, where there was a motorcycle and they loaded it into the truck. They felt something was not right about it. Some people came up and talked to them, they then drove to a friend’s house in Val Vista.
Defendant then sought introduction of more of the statements he made at the station, i.e., those in which he told police that Ramirez had come to him, saying that a friend had called Ramirez and said he had crashed the bike and wanted Ramirez’s help. Defendant also sought admission of his statement to the police that while at the scene of the bike pick-up, he did not have a good feeling about what was going on, so he asked Ramirez if the bike was stolen and Ramirez said it was not. Ramirez then offered defendant some money and cigarettes if defendant would load the bike onto the truck.
In support of his request, defense counsel argued to the court, “[If the defense were to elicit defendant’s statement that] Ramirez... c[ame] to [him] and sa[id] that he needed help moving the bike[,] [¶]... it would not be offered for the truth. We do not care whether... what Ramirez said was true. We are not trying to assert that Ramirez actually did need help moving the bike. [¶] We would be eliciting it for the affect on the listener, a nonhearsay, just to explain [defendant’s] subsequent actions.” In response to the prosecutor’s argument to the court that the defense wanted the statements in to prove the truth of the matters asserted therein, defense counsel said, “[W]hen he [made his statements] to the police he was intending to show why he did what he did. [¶]... He was offering to explain his actions. We would be offering it to explain his actions. We are not offering it for the truth.”
The trial court ruled that there had to be a hearsay exception for the statements Ramirez made to defendant and if the defense tried to introduce them and the prosecutor made an appropriate objection, it would be sustained. In so doing, the court necessarily rejected defendant’s argument that the statements were not being offered for the truth of the matters asserted therein, and, therefore, did not constitute hearsay. Specifically, the trial court concluded that Ramirez’s “no” response to defendant’s question whether the bike was stolen was hearsay. The trial court sustained a hearsay objection to defense counsel’s question whether defendant told him that Ramirez asked him to pick up the motorcycle.
Defendant here contends that the trial court abused its discretion (People v. Hovarter (2008) 44 Cal.4th 983, 1007, 1009; People v. Rowland (1992) 4 Cal.4th 238, 264) in failing to allow him to introduce statements Ramirez made to him that (1) the motorcycle belonged to a friend who had crashed it and had asked Ramirez to pick it up off the street, and (2) the bike was not stolen.
Defendant begins by reiterating the argument he made below, that he was seeking admission of Ramirez’s statements to him for the non-hearsay purpose of showing his mental state or attitude upon hearing them. Defendant contends that they were not being admitted for the truth of the matters asserted therein, i.e., that Ramirez’s friend had called and said that he had crashed his bike and needed Ramirez’s help picking it up and that the bike was not stolen. Rather, regardless of the truthfulness of the statements, admission was sought to show what effect the statements had on defendant—specifically, that in reliance upon them, defendant concluded that the bike was not stolen, which, if believed by the jury, would absolve him of responsibility for both charged offenses. The People counter, arguing that introduction of Ramirez’s statements was, indeed, being sought to prove the truth of the matters asserted therein, i.e., that Ramirez’s friend owned and crashed the bike, he had asked Ramirez to help remove it and it was not stolen.
If defendant had said to the officer that he thought the bike was not stolen and he thought his action in picking up the bike was proper, his statements would fall under Evidence Code 1250 as state of mind declarations introduced to prove the truth of the matters asserted therein, i.e., that he actually had those thoughts, which was not only relevant, but crucial to his defense. As such, they would have been subject to Evidence Code section 1252, which permits exclusion of 1250 evidence “if... made under circumstances such as to indicate its lack of trustworthiness.” (Evid. Code, § 1252.)
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. (Evid. Code, § 1250.)
Because we conclude that the statements defendant sought to introduce were not state of mind declarations under Evidence Code section 1250, we necessarily reject the People’s assertion that Evidence Code section 1252 required their exclusion because the circumstances under which they were made, i.e., defendant had just been arrested and was being questioned by police, demonstrated their untrustworthiness.
However, “a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarant’s state of mind.” (People v. Ortiz (1995) 38 Cal.App.4th 377, 389 (Ortiz); Accord, People v. Jablonski (2006) 37 Cal.4th 774, 820 [When statements are admitted to show the effect on defendant of having heard them, their truthfulness is irrelevant and they are not hearsay.]; People v. Waidla (2000) 22 Cal.4th 690, 725 [“[The victim’s] statements declaring her fear of [defendant] were within the [state-of-mind exception (Evid. Code, § 1250, subd. (a)(2).)]... [S]tatements by [the victim] indicating her fear of [defendant] circumstantially were not even hearsay at all, because they were not offered for their truth.”].) When such evidence is introduced, a limiting instruction that it may not be considered for the truth of the matter asserted therein should be given. (Waidla, at p. 725.)
In People v. Green (1980) 27 Cal.3d 1 (overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 234-238), the California Supreme Court was clear about the distinction between direct evidence of the declarant’s state of mind under Evidence Code 1250 and non hearsay circumstantial evidence of the same. In Green, the People sought introduction of the victim’s statement to her friend that when she told defendant she intended to have their marriage annulled, he threatened to kill her if she did. (Green, supra, 27 Cal.3d. at p. 23.) This evidence was offered, not to prove that defendant actually threatened the victim, but as circumstantial evidence of the victim’s fear of defendant to prove that she did not willingly go with him or engage in sex with him. (Ibid.) The California Supreme Court noted, “When offered for such purpose the statement was simply not hearsay. [Citation.]... [T]he writers have long pointed out the distinction between (1) using an out-of-court declarant’s assertion of his state of mind (e.g., A testifies that he heard the declarant B say, ‘I am afraid of C’) to prove that mental state directly, and (2) using his assertion of other facts (e.g., A testifies that he heard B say, ‘C threatened to kill me’) to prove the same mental state indirectly. The first is hearsay because it is used testimonially, i.e., it is offered for the purpose of inducing the trier of fact to believe in the truth of the assertion itself, just as if the declarant had so testified on the witness stand. The second is not hearsay because it is used circumstantially, i.e., it is offered as evidence of conduct on the part of the declarant (B reported that C threatened to kill him) from which the trier of fact is asked to draw an inference as to the declarant’s state of mind at the time (B fears C).” (Id. at pp. 23-24, fn. 9, italics omitted.)
Ortiz offered two examples of statements which are non hearsay circumstantial evidence of the declarant’s mental state. The first is a declarant’s statement that a certain person is dangerous. “If... offered merely to prove the [declarant] believed [the person] to be dangerous, the statement is not offered for its truth (thus not hearsay) but merely as circumstantial evidence of the declarant’s mental state.... [¶] A greater difficulty arises when the statement, fully asserting personal knowledge... describes a past act of [another person(, the second example)].... [I]f the evidence is offered to prove the declarant[‘s state of mind]..., the statement only has the proffered evidentiary value if the declarant is truthful when describing the event. If the statement is a lie, it cannot constitute circumstantial evidence of [the declarant’s state of mind]. In this situation, it is more difficult to fashion, and more demanding to expect the jury will follow, a limiting instruction. The jury can only legitimately conclude the declarant [had the mental state] if the statement is truthful. However, the jury would have been instructed not to consider the statement itself as true, because it is not admitted for its truth, but only as circumstantial evidence of state of mind.” (Id. at p. 390.) In such circumstances, the trial court, under Evidence Code section 352, “may consider... [the] circumstances attendant to the making of the statement... and whether the circumstances of the statement are such that the jury will be able to follow the limiting instruction. If the court concludes that the jury will be unable to use the evidence solely within its limitations, the court should exercise its discretion and exclude the evidence.” (Id. at p. 392.)
Had the trial court here determined that the circumstances under which these statements had been made required their exclusion, our review would have been different. However, it did not.
We cite Ortiz extensively because of its outstanding job in pointing out the difficulties of admitting such evidence, particularly, as here, where, had it been admitted as non hearsay circumstantial evidence of defendant’s state of mind, as it should have been, the jury would have been placed in the difficult position of not considering it for the truth of the matter asserted therein (i.e., that Ramirez made these statements to defendant) while having to decide what defendant’s state of mind was which was, according to him, based on Ramirez’s statements. Despite this frustrating consequence of applying the laws of evidence to this issue, still we are bound by the California Supreme Court precedent cited in our discussion.
Defendant’s statements circumstantially described his state of mind, i.e., that the bike was not stolen and he had a right to load it onto the truck, therefore, contrary to the trial court’s ruling, they were admissible as non hearsay circumstantial evidence of his state of mind. “A ruling resting on a demonstrable error of law constitutes an abuse of discretion.” (People v. Cooper (2007) 148 Cal.App.4th 731, 742 (Cooper).) Therefore, the trial court’s ruling in this regard was an abuse of discretion.
The trial court also rejected defendant’s argument below that his statements were additionally admissible under Evidence Code section 356, which provides, “When part of a... declaration... is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party;... and when a detached... declaration... is given in evidence, any other... declaration... which is necessary to make it understood may also be given in evidence.” The trial court ruled, “I don’t think [Evidence Code section 356] means we ignore all the Rules of the Evidence Code; and the Court needs to determine what portions of the... statement may come in. [¶]... [¶]... What I see he[re] is we have statements made at the same time, but they don’t necessarily go to the same thing. They are not saying, [‘]I, the defendant, did the following.[’] [¶] It is, [‘]I, the defendant, did the following, and also someone said this and someone said that,[’] so I do see a differentiation. [¶]... I believe that there has to be an exception for those... statements[.]... [I]f that person says Person A said something, you have to have an exception for it.... [¶] I believe here I can’t allow any hearsay statements of what the defendant said attributed to other people, unless there is an exception for it.”
In People v. Williams (2006) 40 Cal.4th 287, 319, the California Supreme Court noted, “‘The purpose of... section [356] is to prevent the use of selected aspects of a... declaration... so as to create a misleading impression of the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced into evidence, he may show other portions of the same interview..., even if they are self-serving, which ‘have some bearing upon, or connection with, the admission... in evidence.’ [Citation.]” (Williams at p. 319.) “‘“‘In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. “In the event a statement admitted in evidence constitutes part of a conversation..., the opponent is entitled to have placed in evidence all that was said... by... the declarant in the course of such conversation... provided the other statements have some bearing upon, or connection with the admission or declaration in evidence.... [”] [Citation.]’” [Citation.]’ [Citation.]” (People v. Parrish (2007) 152 Cal.App.4th 263, 274, italics omitted.) “The statements [are] admissible for the nonhearsay purpose of placing [the already admitted] statements into context.” (People v. Harris (2005) 37 Cal.4th 310, 335.)
Thus, we are, once again, confronted with the problem of instructing the jury not to consider the statement for the truth of the matters asserted therein, while, at the same time, considering them for their truth to the same extent it considers the statements by defendant which the prosecution introduced because the former gives meaning to the latter. (See fn. 10, ante, p. 8.) Be this as it may, still, California Supreme Court authority dictates that the statements at issue were, indeed, admissible under Evidence Code section 356.
We disagree with the People’s assertion that the omitted statements were not necessary to give meaning to admitted statements—they explained why defendant did what he did. The trial court made a demonstrable error of law in concluding that something other than Evidence Code section 356 was necessary to justify their admission into evidence. Therefore, it abused its discretion in excluding them. (See Cooper, supra, 148 Cal.App.4th at p. 742.)
We further conclude that reversal is required because it is reasonably probable that admission of this evidence would have resulted in a more favorable outcome for defendant. (People v. Arias (1996) 13 Cal.4th 92, 157.) The case against defendant was far from overwhelming, particularly on the very issue this evidence addressed, i.e., his intent at the time he helped load the bike onto the truck bed. To get a flavor of how devastating omission of this evidence was to the defense, we quote extensively from defense counsel’s argument to the jury, as follows, “[Defendant] trusted the wrong people.... He was at a friend’s house that night. He was lied to. He helped them move a bike.... [¶]... [¶] [Defendant] was at this house, these guys came to him and told him a lie. [¶]... [¶] Ramirez and [Blodgett]... made a statement to [defendant] before they left [the house]... to go pick up their bike.... [¶]... [a]nd... that statement wasn’t true.... [¶]... [¶]... [T]he statement that was given by those other people that we weren’t allowed to bring in, that statement was... told to [defendant] by these other people, that statement was [that ‘The] motorcycle is not stolen[,’] or something to that effect like, [‘Y]ou know, a friend, he crashe[d] the bike over on Cedar. We just need another hand to go pick it up.[’] [Defendant] says, ‘Oh, you need a hand. I will go help you.[’] [¶]... [¶]... They say they need a hand. They go out to Cedar.... [¶]... [¶]... [Defendant says, ‘]I had an uneasy feeling, so I said something to these guys,[’] and these guys said something back to [me.’] What was the statement? We don’t get to know that, but we can extrapolate. We can infer. [¶]... [¶] [The statement is, ‘]There is nothing wrong with this. Help us put it in the truck. It’s not stolen.[’]... [¶] He trusted the wrong people.... There is no crime at all, unless he knows... that the motorcycle is stolen.... [¶]... [¶] [Defendant] gives the statement to the police, and the prosecutor takes half of it, and uses it against him, uses it to support his case.... [¶]... [¶]... [I]n order to be guilty of either one of these charges, you have to know you are doing something wrong. You have to know there is a stolen motorcycle involved.... [¶]... [Defendant] is a guy who thinks he is help[ing] out a couple [of] guys; giving them a hand, because their friend... [¶]... rode it and fell over [on the road.] [¶]... [¶]... [Defendant] trusted the wrong people. He got lied to. He didn’t know it was stolen. [¶]... [¶] [The prosecutor’s] case rests on [defendant’s] statement. [‘]I helped these guys. I was lied to.[’]... That is a statement [the prosecutor] takes elements of it and uses it against him.... [¶]... [¶] [The prosecutor] is going to... say... that one of the pieces of evidence that he has... is where he picks and chooses what parts of [defendant’s] statements to the police that he is going to use.... [¶]... [I]mmediately after [defendant] said he had an uneasy feeling, he was lied to again by Ramirez. One of those little somethings that we tried to dance around while the officer was on the stand. [¶] One of those statements that Ramirez told [defendant] that the officer told us was not true, that happened right after [defendant] had the uneasy feeling. By extrapolation... what is it? [¶]... [¶]... [‘]It is not stolen. Don’t worry about it. Just help us out,[’] and this is what he did. [¶] [Defendant] thought he was helping out a friend. Someone had crashed the motorcycle. He was loading it into the truck.... [T]he intent was to help his friend. He had no idea the thing was stolen[.]” Defendant also otherwise asserted that the People failed to prove that defendant knew the bike was stolen.
The problem with defense counsel’s argument is that the crucial evidence he invited the jury to “infer,” i.e., that defendant had been told the bike was not stolen and the owner needed it to be picked up from the side of the road after it had been damaged, had no evidentiary basis because of the trial court’s rulings.
We note that the jury acquitted defendant of unlawfully taking/driving a vehicle.
Disposition
The judgment is reversed.
We concur: HOLLENHORST, J., McKINSTER, J.
“Q. [DEFENSE COUNSEL] [Y]ou have never talked to anyone who saw [defendant] at [the primary rider’s] apartment..., right?
“A. [OFFICER] Aside from who was with him.
“Q. [DEFENSE COUNSEL] No.... [O]ther than statements made by other people in that truck, you never talked to a witness who saw [defendant] at [that] apartment complex,... right?
“A. [OFFICER] No, sir.
“Q. [DEFENSE COUNSEL] You never talked to anyone who... saw [defendant]... touch that bike, right? [¶]... [¶] Other than statements made by... Ramirez[?]
“A. [OFFICER] That is correct....”