Opinion
A100981.
7-24-2003
In re CURT A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CURT A., Defendant and Appellant.
Curt A. appeals from his adjudication as a ward of the court after the court found he took/drove a vehicle without permission, in violation of Vehicle Code section 10851, subdivision (a). He contends the admission of out-of-court statements by his accomplices was prejudicial error.
BACKGROUND
Sometime between 11:00 p.m. and midnight on March 2, 2002, Che G. drove to a friends house in a Ford Escort owned by her father. Matthew P., Darren K. and appellant, all of whom she knew, were also at the house. Che G. fell asleep on the friends sofa at approximately 1:30 a.m. When she awoke at approximately 6:30 a.m. her car keys, which she had laid on a dining room table, and her car were missing. Appellant, Matthew P. and Darren K., who were in the house when she fell asleep, were not there. She had not given anyone in the house permission to use her car.
On the morning of March 2, 2002, California Highway Patrol Officer Michael Humble was dispatched to the scene of a solo car rollover accident. The cars injured occupants were appellant, Matthew P., and Darren K. Before they were taken to the hospital they told Humble that "an unknown Mexican male had driven the car and wrecked it and ran off."
Although the record nowhere so specifies, the parties do not dispute that the car was Che G.s Ford Escort.
Several hours after Humble finished his traffic collision report he was informed the car involved was stolen. He then began a stolen vehicle investigation. Appellant, whom he contacted that day at the hospital, told him that Darren K. was actually the driver of the car.
Six weeks later, appellant told Humble that he "wasnt sure who had actually gotten the keys [to Che G.s car] because he was asleep on the floor and [Darren K. and Matthew P.] had woken him up." He further explained to Humble that Matthew P. and Darren K. wanted to "go cruise around." Appellant told Humble that he agreed to go with them "as long as he got dropped off at home," and that as far as he (appellant) knew, nobody had permission to drive the car.
The court found that appellant violated Vehicle Code section 10851, subdivision (a) by participating in taking Che G.s car without permission, declared him a ward of the juvenile court and put him under the care of the probation department, with placement at his mothers house. He was ordered to pay restitution of $ 2,492 to Che G.s father, a "joint [and] several" amount that could be enforced as a civil judgment.
DISCUSSION
Appellant contends the court erred in admitting out-of-court hearsay statements by Darren K. and Matthew P.
Background
The following colloquy took place during Officer Humbles direct examination:
"[PROSECUTOR]: Did you also ask [Darren K.] specifically [] how he obtained keys to the vehicle?
"[HUMBLE]: Yes, I did.
"[PROSECUTOR]: What was his statement?
"[DEFENSE COUNSEL]: Objection. Hearsay.
"[PROSECUTOR]: Declaration against penal interest.
"[DEFENSE COUNSEL]: Against whose penal interests? [Darren K.s]?
"[PROSECUTOR]: Yes.
"[DEFENSE COUNSEL]: Well, [Darren K.] is not on trial; [appellant] is.
"[PROSECUTOR]: Right. But at the time that this statement was taken from [Darren K.], it was a declaration against [Darren K.s] penal interests which is an exception to the hearsay rule
"[DEFENSE COUNSEL]: Maybe Im missing something. That exception applies to the person who its being used against, not some other party.
"[PROSECUTOR]: No. Its being used against the declarant.
"THE COURT: The objection is overruled. [P] By the way, I take it this is the [Darren K.] who just entered a plea. Is he still in the building as an available witness or not?
"[PROSECUTOR]: No. Well, I dont think hes an available witness up until after the time of his disposition hearing.
"THE COURT: Okay.
"[PROSECUTOR]: Go ahead and relate what [Darren K.] had informed you as to how the keys to the vehicle were obtained.
"[HUMBLE]: [Darren K.] stated that [appellant] wanted to leave the party . . . and that all three of them had departed.
"[PROSECUTOR]: And he didnt know specifically who obtained the keys?
"[HUMBLE]: No, he did not.
"[PROSECUTOR]: Did he say anything about his knowledge as to [Che G.] giving anybody permission to operate the vehicle?
"[HUMBLE]: He . . . advised me that a gentleman that I could not follow up on had said that everybody had permission to drive [Che G.s] vehicle all that time. . . .
"[PROSECUTOR]: Now, as part of your vehicle theft investigation, did you also contact a minor named Matthew [P.]?
"[HUMBLE]: Yes.
"[PROSECUTOR]: Did you ask him specifically questions with regards to who had permission to take the keys or who had taken the keys?
"[HUMBLE]: I [] asked him if . . . he knew if anybody had permission to drive the vehicle. He stated that he did not know if anybody had permission and that [appellant] had taken the keys and given them to him. He had assumed that [appellant] had permission to have the keys because he and [Che G.] are good friends"
Evidence Code section 1230 provides that 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, 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. A party asserting that an out-of-court statement is admissible under Evidence Code section 1230 must show that the declarant is unavailable, that his statement was against his penal interest, and that his statement was sufficiently reliable to warrant admission despite its hearsay character. (People v. Cudjo (1993) 6 Cal.4th 585, 607, 863 P.2d 635.)
The People concede that the hearsay statements of Darren K. and Matthew P. do not meet the test for admissibility as statements against penal interest. However, they contend appellant waived any claim of error as to Darren K.s statement to the extent he now asserts Darren K. was an available witness. They also contend he waived any claim of error as to Matthew P.s statement because he did not object to its admission. Alternatively, they contend any error was harmless. Because we agree with the last contention, we need not address the waiver issue.
The erroneous admission of a hearsay statement generally requires reversal only if it is reasonably probable the defendant would have obtained a more favorable result absent its admission. (People v. Gordon (1990) 50 Cal.3d 1223, 1253, 270 Cal. Rptr. 451, 792 P.2d 251.) Even without the hearsay statements there was ample evidence that appellant violated Vehicle Code section 10851, subdivision (a).
Gordon noted that in some cases an erroneously admitted hearsay statement is presumed prejudicial unless the error is shown to be harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824), but the Chapman standard of review applies only "when the declarant is a codefendant or his statement is `powerfully incriminating. [Citation.]" (50 Cal.3d at p. 1253, fn. 5, italics in original.) Although Darren K. and Matthew P. were codefendants, neither of their statements can be characterized as "powerfully incriminating." If anything their statements favor appellant because they imply that Che G. often permitted people to drive her car.
To establish a violation of this statute there must be evidence that the accused either drove or took a vehicle belonging to another person, without the owners consent, and with the intent to deprive the owner temporarily or permanently of possession of the vehicle, or was a party, accessory, or accomplice in the driving or unauthorized taking of the vehicle. Che G. did not give anybody permission to drive her car, and her car keys were on the table when she fell asleep at 1:30 a.m. Appellant admitted that when Darren K. and Matthew P. woke him up at the house and proposed they "go cruise around," he agreed to accompany them. He also admitted that he did not think anyone had permission to take or operate Che G.s car. Near the time Che G. awoke and discovered her car was missing, it was involved in an accident, and appellant, Darren K. and Matthew P. were its occupants. This evidence readily establishes that before appellant left the house, he intended to participate in taking a car that did not belong to him without permission of its owner and temporarily depriving her of its possession.
Che G. woke up at approximately 6:30 a.m. Officer Humble was never asked the time he was dispatched to the collision scene, but he testified that he met with Che G.s father regarding the car "much later in the morning" after he had been at the accident site.
DISPOSITION
The order adjudicating appellant a ward of the juvenile court is affirmed.
We concur, Stevens, J., Simons, J.