Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV124480
ROBIE, J.
Following a contested jurisdiction hearing, the Contra Costa County Juvenile Court found that 17-year-old minor T. M. was within the provisions of Welfare and Institutions Code section 602 in that he possessed a firearm. Because the minor resided in Sacramento County, the matter was transferred there for disposition.
The Sacramento County Juvenile Court continued the minor as a ward of the court and committed him to the Sacramento County Boys Ranch for a maximum confinement term of six years. The minor was awarded 56 days of custody credit.
In 2006, prior to this firearm charge, the minor pled no contest in Contra Costa County to second degree robbery and receiving stolen property, was adjudged a ward of the court, and placed on probation.
On appeal, the minor contends: (1) the Contra Costa court erroneously sustained the prosecutor’s hearsay objections to the “co-responsible” juvenile’s statement about the firearm, which was against the coresponsible’s penal interest; and (2) the Sacramento court failed to award sufficient custody credit. We shall modify the judgment.
FACTS
On March 7, 2008, Richmond Police Sergeant Charles Whitney was on patrol. At about 11:30 pm., he saw a car run a red light. Whitney stopped the car and contacted the minor, who was driving, and his three passengers.
Upon reaching the car, Sergeant Whitney noticed that the front seat passenger, L. M., was wearing a baseball hat commonly worn by certain gang members in Richmond. L. M. made a motion between his seat and the center console; Whitney saw an object, which he suspected was a magazine from a pistol, falling between the seat and console. Whitney told everyone to keep their hands in plain view.
The minor handed Sergeant Whitney his driver’s license and other paperwork. Then Whitney asked if anyone had any firearms in their possession. The question was met by a brief pause and an audible gulp from the left rear passenger. Both the minor and L. M. appeared nervous. Believing that firearms were in the car, Whitney called for backup and returned to his patrol car.
When Officer Ryan Bailey arrived, Officer Whitney brought the minor to the patrol car. After conversing with defendant about the traffic stop and his driver’s license, Whitney explained his concern that firearms could be present in the car. Eventually Whitney asked for and received permission to search the car.
Officers searched the car and found three firearms as well as suspected cocaine. Specifically, in the glove box facing the right passenger seat, they found a loaded Colt.45-caliber gun with a magazine “fully seated into the firearm.” A second magazine for the Colt.45-caliber was recovered from between the center console and the front passenger seat. A Smith & Wesson semiautomatic handgun was found behind and underneath the front passenger seat. A Taurus with a 25-round extended magazine was found behind and underneath the driver’s seat.
Special Agent Andre Lemay interviewed the minor. At first, the minor denied any knowledge of the gun in the glove box. But, after being advised to tell the truth, he admitted that the gun belonged to him and his cousin, L. M., and that they brought the gun along out of fear of being shot in Richmond. When asked if his fingerprints would be on the gun, the minor said yes, because he put the gun in the glove box. During Agent Lemay’s testimony, the parties offered to the court the following stipulation:
On cross-examination, Agent Lemay acknowledged that he prepared his report more than a week after the minor’s arrest and that he did so from memory. Lemay also acknowledged errors in his report including the date of the incident and other dates, and that he only paraphrased the statements he had taken from the suspects.
“(1) The parties hereby stipulate that [L. M.]..., if called to testify... would invoke his Fifth Amendment rights on the advice of his attorney and would refuse to answer questions.
“(2) The parties further stipulate that Sargeant [sic] Whitney, previously sworn as a witness, if recalled as a witness would testify as follows: [¶] ‘In summary, [L. M.] told me the following.’ [¶] ‘He did however admit to have handling [sic] the.45 cal. magazine so his prints would be on it.’ [¶] ‘He said a friend put the Colt in the glove box and he did handle it. He admitted it was there for him to use as protection.’”
The juvenile court expressed concern that L. M.’s out-of-court statements to Officer Whitney, recounted in the stipulation, were hearsay. After the prosecutor confirmed that she was not objecting to the hearsay, the court accepted the stipulation.
Shortly thereafter, defense counsel sought to cross-examine Agent Lemay as to his interview with L. M. This exchange took place:
“[DEFENSE COUNSEL]: Agent Lemay, you also interviewed [L. M.]
“[AGENT LEMAY]: Yes.
“[DEFENSE COUNSEL]: [L. M.] said the gun was in the vehicle -- not specifying which gun was his; correct?
“[THE PROSECUTOR]: I’m objecting as hearsay.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: It’s a declaration against interest.
“THE COURT: Not against this party’s interest. [¶] Sustained.
“[DEFENSE COUNSEL]: A declaration against the declarant [sic] interest, which is the important part of the hearsay exception.
“THE COURT: Sustain the objection.
“[DEFENSE COUNSEL]: [L. M.] also told you that he had the gun
“[THE PROSECUTOR]: Objection. [¶] Hearsay.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: Can I make a record of this, Your Honor, for appellate purposes?
“THE COURT: You can make a record that whatever he told this officer -- this other person -- is hearsay.
“[DEFENSE COUNSEL]: I would like to -- I didn’t have a chance to finish the question. [¶] Could I have it read back, Your Honor? (Record read by Reporter.)
“THE COURT: Hearsay.
“[DEFENSE COUNSEL]: Could I finish the sentence, Your Honor?
“THE COURT: No.
“[DEFENSE COUNSEL]: Did [L. M.] also tell you
“[THE PROSECUTOR]: Objection. [¶] Hearsay.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: So the court’s ruling I cannot ask this person anything about what [L. M.] said to that officer?
“THE COURT: That’s correct.
“[DEFENSE COUNSEL]: Again, I would still at least like to make my record, Your Honor.
“THE COURT: You can make it legally but not ask the questions -- I mean, any questions of [L. M.’s] [sic].
“[DEFENSE COUNSEL]: My offer of proof is that this officer would testify that [L. M.] told him that he had the gun -- meaning -- ‘he’ meaning [L. M.] -- had the gun for protection because he had been shot in the past.
“THE COURT: All right. That’s sustained.
“[DEFENSE COUNSEL]: And I believe that’s a declaration against interest and is admissible under hearsay [sic] rule, because [L. M.]
“THE COURT: It’s not this party’s interest. [¶] Sustain the objection.
“[DEFENSE COUNSEL]: I have no other questions of this witness, Your Honor.” (Italics added.)
The minor’s mother testified that she owned the car that he was driving on the night he was pulled over and that she kept the car’s registration in the glove box. She instructed him to keep the insurance card in his wallet.
The minor testified that he picked up his three passengers around 11:00 pm. while he was on the way to a fast food restaurant. He denied seeing any firearms at that time and denied that he was in possession of a firearm or other weapon. After leaving the restaurant, while enroute to the minor’s grandmother’s house, they were stopped by police. When an officer flashed his lights, L. M. removed a gun from his pocket or from under the seat and put it in the glove box. The minor denied knowledge of any of the other weapons found in the car.
The minor testified that the officer approached his window and requested the minor’s license and registration. The minor gave the officer his license and insurance card; then the minor searched for the registration amongst the papers in the driver’s side door compartment. The officer told the minor to take his time and then returned to his patrol car.
Recalling that his mother kept the registration in the glove box, the minor asked L. M. to get it for him. L. M. took some papers from the glove box and handed them to the minor. When the officer returned, the minor handed him the registration and he told the minor to step out of the car. He did so, leaving the car keys in the ignition.
The minor denied telling Agent Lemay that the gun belonged to both him and L. M.; he further denied telling Lemay that he had the gun for protection. Rather, the minor told Lemay that he had learned that L. M. had the gun at the time of the traffic stop. When asked why L. M. would have a gun, the minor had speculated, “maybe because had got shot.”
DISCUSSION
I
Hearsay Objection To L. M.’s Statement
The minor contends the juvenile court deprived him of due process, a fair trial, and his right to present a defense, when it erroneously sustained a hearsay objection to L. M.’s statement admitting his possession of the gun. (Evid. Code, § 1230.) The minor claims this federal constitutional error was not harmless beyond a reasonable doubt.
All further statutory references are to the Evidence Code unless otherwise indicated.
The People respond that the minor’s federal claims cannot be raised for the first time on appeal and the evidentiary error, which they effectively concede, was not prejudicial by state standards. We accept the concession and conclude the error was harmless by any standard.
L. M.’s out-of-court statements that he possessed the gun and did so for his protection because he had been shot were offered for their truth and thus were hearsay; as such, they were inadmissible unless they came within an exception to the hearsay rule. (§ 1200; People v. Duarte (2000) 24 Cal.4th 603, 610.)
The minor sought to admit the statements as declarations against L. M.’s interest. Section 1230 provides in relevant 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,... so far subjected him to the risk of... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true.”
A trial court’s decision as to whether a statement is against a defendant’s penal interest is reviewed for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153-154; see generally People v. Brown (2003) 31 Cal.4th 518, 534.)
The parties agree that, pursuant to the stipulation, L. M. was “unavailable as a witness” because he would assert his Fifth Amendment privilege against self-incrimination. (See People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.) Furthermore, the People do not dispute that L. M.’s first statement -- that he possessed the gun -- is arguably against L. M.’s penal interest.
L. M.’s statement that the gun was for his protection because he had been shot in the past, demonstrates L. M.’s motive for the offense. Thus, the statement increases the likelihood that L. M. committed the crime; it neither curries favor for him nor shifts blame to the minor. Contrary to the People’s suggestion, the statement is not within the class of collateral assertions within declarations against interest that are properly excluded from evidence. (People v. Duarte, supra, 24 Cal.4th at p. 612.)
As the italicized passages show, the juvenile court believed that the section 1230 hearsay exception is limited to statements against a party’s penal interest. Although analogous limitations appear in other hearsay exceptions (e.g., §§ 1220-1223), section 1230 is not so limited. (People v. Fuentes, supra, 61 Cal.App.4th at pp. 959-962 [unavailable non party coparticipants’ statements to police admitted into evidence].) The People concede that the juvenile court “was apparently confused over the foundational requirements of the hearsay exception.” We conclude exclusion of L. M.’s statement that he possessed the gun was an abuse of discretion. (People v. Lawley, supra, 27 Cal.4th at pp. 153-154.)
The minor effectively contends this abuse of discretion “had the additional legal consequence of violating” his rights to due process, to a fair trial, and to present a defense. (People v. Partida (2005) 37 Cal.4th 428, 435.) He may so contend, even though he had not voiced those federal consequences in the juvenile court. (Ibid.)
The People contend the erroneous exclusion of L. M.’s statement was harmless because it was “largely redundant to the statement Officer Whitney testified to via stipulation.” We agree. The minor counters that the statement was not redundant because it “explained the motive for needing protection -- [L. M.] had been shot.” However, the minor acknowledged in his own testimony that L. M. “had got shot.” Although the juvenile court found the minor’s testimony generally “was not credible,” there was no contrary evidence -- and no reason to believe -- that L. M. had not been shot.
The minor claims L. M.’s statement to Agent Lemay was not redundant because it confirmed L. M.’s earlier statement to Sergeant Whitney, that the gun was for protection and L. M. knew it was in the glove box. However, the statement to Whitney was received by stipulation, and no other evidence called its contents into doubt. Conversely, as the minor admits in another context, the juvenile court “wasn’t overly impressed with” Agent Lemay, perhaps because he had prepared his report more than a week after the minor’s arrest and had only paraphrased the statements he had taken from suspects. Whether Lemay had the ability to bolster Whitney is thus speculative at best.
The minor claims “the only evidence the prosecution offered to show the gun belonged to [him] was Agent Lemay’s testimony and report from the night of the investigation, which was untrustworthy.” This claim ignores the record.
The juvenile court expressly relied on Officer Whitney’s stipulated testimony that L. M. had said “‘a friend put the Colt in the glove box.’” Because the Taurus was found behind the driver’s seat, and the Smith & Wesson was found behind the front passenger seat, the only reasonable inference was that those guns belonged to L. M.’s two “friends” in the backseat; his remaining “friend,” who had put the Colt the front glove box, was the minor.
Contrary to the minor’s argument, L. M.’s excluded statement to Agent Lemay -- that he had the gun for protection because he had been shot in the past -- was entirely consistent with L. M.’s admitted statement to Sergeant Whitney -- that a friend put the gun in the glove box and it was there for L. M. to use as protection. L. M. never said or implied to Agent Lemay that he had “had” the gun prior to the time his “friend” put it in the glove box. Nor did any other evidence so suggest. The true finding on the wardship petition was “surely unattributable to” the erroneously sustained hearsay objection. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182]; see Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
II
Custody Credits
The minor contends, and the People concede, the judgment must be modified to award the minor 306 days of custody credit. We accept the People’s concession.
In June 2006, the minor admitted allegations that he had committed second degree robbery and had received stolen property. (See fn. 2, ante.) He was adjudged a ward of the court, ordered to complete a rehabilitation program, and placed on probation. His total time in custody on these allegations was 250 days, consisting of 36 days in the Contra Costa County Juvenile Hall and 214 days at the rehabilitation facility.
In March 2008, the minor was detained in Contra Costa County on the instant allegation. He remained in custody until the time of his disposition hearing in Sacramento County. His maximum confinement time was calculated to be six years, consisting of five years four months for the 2006 proceeding and eight months for the 2008 proceeding. He was awarded 56 days of credit for the 2008 proceeding, but no credit for the 2006 proceeding.
When a juvenile court elects to aggregate a minor’s period of physical confinement on multiple petitions pursuant to these foregoing statutory provisions, the court must also aggregate the predisposition custody credits attributable to those multiple petitions. (In re Eric J. (1979) 25 Cal.3d 522, 533-536; In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067-1068.)
We shall modify the judgment to award the minor 306 days of custody credit, consisting of 250 days for the 2006 proceeding and 56 days for the 2008 proceeding.
DISPOSITION
The judgment is modified to award the minor 306 days of custody credit. As so modified, the judgment is affirmed. The Sacramento County Juvenile Court is directed to amend its minute order accordingly and to forward a certified copy of the amended order to the Sacramento County Boys Ranch.
We concur: RAYE, Acting P. J., HULL, J.