Opinion
B223189
10-03-2011
THE PEOPLE, Plaintiff and Respondent, v. WILBERT ARD, Defendant and Appellant.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA084097)
APPEAL from a judgment of the Superior Court of Los Angeles County, John David Lord, Judge. Reversed.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Wilbert Ard appeals from the judgment entered following his conviction by jury on one count of receiving stolen property (Pen. Code, § 496d, subd. (a)) and one count of unlawfully taking a car without the owner's consent (Veh. Code, § 10851, subd. (a)). He asks us to conduct an independent review of a Pitchess hearing. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) Appellant also challenges the admission of hearsay evidence. Finally, appellant contends that the prosecutor committed prejudicial misconduct during closing argument. We conclude that there was no error in the Pitchess proceeding. However, the trial court erred in admitting the challenged hearsay evidence, and the error was not harmless. We therefore reverse his conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
On November 25, 2009, Annie Melsopp was in Long Beach at the home of her aunt, Nancy Sheeler, waiting for appellant to drive from Oakland to pick her up to go to her mother's house for Thanksgiving. Melsopp told Sheeler that appellant was going to come in a rental car.
After appellant arrived at Sheeler's house, he and Melsopp took Sheeler to a liquor store to get some money. Melsopp drove because she had a driver's license and appellant did not. They were stopped by police officers when they tried to leave the liquor store.
Long Beach Police Officer Alberto Vargas testified that on November 25, 2009, he saw a grey Kia with paper license plates, but no temporary registration, in a liquor store parking lot. When he went to investigate, he felt a license plate under the paper license plate, so he took off the paper and saw the license plate. Officer Vargas checked the vehicle identification number and learned that the car had been reported stolen in Stockton.
Officer Vargas asked Melsopp for her license and asked if it was her car. Melsopp said it was appellant's and pointed to appellant, who was seated in the front seat. Both Melsopp and Sheeler said appellant rented the car. Officer Vargas asked Melsopp where the car's license plates were, but Melsopp had not noticed that the car had no license plates. Melsopp told him that appellant had come to pick her up in the car and asked her to drive because he did not have a license. There was nothing about the car that indicated to Melsopp it was stolen - for example, the windows were intact, and appellant had the keys to the car.
Officer Vargas asked appellant if it was his car, and appellant said it was his friend's. Officer Vargas asked for the registration and insurance, but appellant was unable to find any and said his friend left no paperwork in the car.
Appellant and Melsopp were placed under arrest. Officer Vargas's partner, Officer Pablo Orduno, read appellant his Miranda rights and asked appellant if he knew anything about the car, but appellant said he had never seen the car before and did not know to whom the car belonged. (Miranda v. Arizona (1966) 384 U.S. 436.)
Christina Van Voorhis was a risk manager for Enterprise Holdings who handled thefts involving company vehicles. She testified about an Enterprise rental agreement, indicating that between November 13 and November 18, 2009, Antoinette White rented several cars in Stockton, including the Kia that appellant and Melsopp were driving. White rented a car on November 13, but she switched it on November 14 for a different car, then switched the second car for a third car on November 17, and on November 18, she switched the third car for the Kia. Van Voorhis testified that it was unusual for a customer to switch cars so frequently.
Under a section of White's rental agreement entitled "additional information," someone had written, "vehicle stolen, Kia Spectra, '08, 7B539N." Van Voorhis stated that she did not know why this entry was written in the rental agreement.
Van Voorhis also testified about an accident report attached to the rental agreement, which she said was generated when a vehicle was stolen. The accident report was written on November 20, 2009, and indicated that White had contacted Enterprise to report that the Kia had been stolen. The report stated, "Customer went into AM/PM on Wilson Way to get a pack of cigarettes and she left the keys to the vehicle in the car. When she came out, someone had taken the vehicle. [¶] Customer reported it stolen to the Stockton P.D. Customer aware that the way vehicle was stolen was negligent and the waiver on the vehicle would be void. [¶] I told her to file a claim with her insurance, and she said she'd get back to me."
Van Voorhis stated that usually a customer comes in person to sign the accident report, "which is an admission that they were present when the report was taken," and she did not know why this procedure was not followed with this report. She did not prepare the documents in this case, and she did not speak with the person who did. She did not know which Enterprise employee took White's statement about the car theft and did not know if White herself even called to report the car was stolen.
Van Voorhis also testified about an Enterprise rental agreement with Eric Bonzer, indicating that Bonzer rented a car on November 5, 2009 in Long Beach, switched the car on November 9, and returned the second car on November 16. Appellant had asked Bonzer, Sheeler's roommate, to rent the car for him and had wired Melsopp money to pay Bonzer for the car rental. Appellant asked Bonzer to rent the car because Bonzer had a credit card, and appellant wanted Melsopp to drive up north to pick him up for Melsopp's sister's birthday.
Long Beach Police Officer Joseph Starbird was the lead investigator in appellant's case. Detective Starbird testified that he interviewed White, who told him the car was stolen at an AM/PM market when she left the car running while she went to buy cigarettes. White told Detective Starbird that she did not call 911 because her cell phone battery was dead. Detective Starbrid asked why she did not use the pay phone, and she replied that she did not have any change. After Detective Starbird pointed out that she did not need change to call 911, White told him that she did not call the police because she did not know the car's license plate number.
Defense Evidence
Appellant testified that he needed a car, so he asked a friend, Marcus Green, if Green knew anyone who could loan him a car. Appellant could not rent a car for himself because he did not have a valid driver's license or credit card. Green called White, who came to Green's house. After Green spoke with White, he asked appellant if he had the money, and appellant said he did.
White left and returned a few hours later in the Kia at issue here. Appellant gave White $200, and White gave him the car keys and told him to return the car to her in a week-and-a-half so she could return the car to Enterprise. White told appellant that the $200 payment was for her "personal use," and that appellant would be responsible for the rental fees when he returned the car. Appellant did not look at the car's license plate.
When appellant was stopped by the police on November 25, he did not know the car had been reported stolen. He initially told the police the car belonged to a friend, but subsequently said he did not know to whom the car belonged. He did not think what he had done was illegal, but he did not tell the police the entire story when he was stopped because he panicked. He also testified that he did not think Detective Starbird would believe his story.
Appellant testified that he did not ask Bonzer to rent a car for him this time because appellant was up north at the time. He also did not think Bonzer would do it again because appellant and Melsopp had returned the other rental car late.
Rebuttal
Detective Starbird testified that when he interviewed appellant, appellant did not tell him that he had someone's permission to take the car from Stockton to Long Beach.
Procedural Background
Appellant was charged with one count of receiving stolen property, in violation of Penal Code section 496d, subdivision (a), and one count of unlawful driving or taking of a vehicle, in violation of Vehicle Code section 10851, subdivision (a).
Defense counsel filed a Pitchess motion against Officer Vargas, contending that Officer Vargas was lying when he said that appellant stated that the car belonged to a friend. The trial court granted appellant's motion and conducted an in camera hearing on February 16, 2010. The court reviewed all the documents and determined that none of them would be disclosed.
On February 25, 2010, the date the trial was scheduled to begin, the prosecutor let the court know that he had some issues for the court to address - first, White was not going to testify, and, second, he planned to call a witness from Enterprise to testify about White's rental agreement. The prosecutor explained that White previously indicated she was willing to testify, but he did not think she would come. He had a subpoena for White to appear, but he did not expect her to comply with it. The trial began the following day, February 26, 2010, and the subpoena was returnable at that time.
Defense counsel objected to the testimony of Van Voorhis because he was not provided any notice that someone from Enterprise would testify until the day before the trial began. The court asked the prosecutor if the person testifying was a custodian of records, and he replied that she was. Defense counsel also objected to the admission of the rental agreement because he was not given notice of it, but the court overruled his objection on the basis that defense counsel should have expected the rental agreement to be introduced.
After receiving a copy of the rental agreement, defense counsel repeatedly objected to its admission, on relevancy grounds and under the business records exception to the hearsay rule. Specifically, he objected to the statement on the accident report giving White's account of the theft of the car, arguing that it did not come within the purview of Evidence Code section 1271. He pointed out that the writing was not made at or near the time of the event and that there were no indications of White's trustworthiness. He further argued that he was not able to cross-examine her and that the report was similar to a police report, which was not admissible evidence. He thus objected to the admission of the evidence "under 352 of the Evidence Code under relevancy, under hearsay, and under the confrontation clause and due process of the federal Constitution as well."
The court reasoned that the statement qualified as a declaration against interest because White's statement subjected her to civil liability from the rental car company. The court also reasoned that the statement fell under the business record exception to the hearsay rule. Defense counsel argued that the statement was double hearsay because White's statement was made to an unknown employee of Enterprise. He further argued that the admission of the statement violated Evidence Code section 1230 and that there was no evidence White knew her statement was against her civil liability interest. The court overruled the objections. The court also overruled defense counsel's hearsay objection to Officer Vargas' testimony that the car was reported stolen.
The jury found appellant guilty of both counts, and the court sentenced appellant to a term of two years. Appellant filed a timely notice of appeal.
DISCUSSION
I. Pitchess Proceedings
Appellant contends, and respondent agrees, that we should conduct an independent review of the Pitchess proceedings. We review the trial court's decision regarding the discoverability of material in police personnel files under the abuse of discretion standard. (People v. Cruz (2008) 44 Cal.4th 636, 670.) "A trial court abuses its discretion when its ruling 'fall[s] "outside the bounds of reason."' [Citation.]" (People v. Waidla (2000) 22 Cal.4th 690, 714.) The trial court's ruling here does not fall outside the bounds of reason. We therefore affirm.
The record indicates that the court complied with the procedural requirements of a Pitchess hearing. There was a court reporter present, and the custodian of records was sworn prior to testifying. (People v. Mooc (2001) 26 Cal.4th 1216, 1228, 1229, fn. 4 (Mooc); People v. White (2011) 191 Cal.App.4th 1333, 1339-1340.) The custodian of records complied with the requirement to bring all the records and submit them for the court to review and determine which documents were relevant. (People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415 (Wycoff).)
We note that the documents screened by the trial court were not made part of the record on appeal. However, the reporter's transcript of the in camera proceeding indicates that the custodian of records brought all the files on Officer Vargas and submitted them to the court for review. (See Mooc, supra, 26 Cal.4th at p. 1229.) The court stated the contents of each record, and it was the court, not the custodian of records, that determined whether any documents in the personnel file contained relevant information. (Cf. Wycoff, supra, 164 Cal.App.4th at p. 415 [insufficient record when custodian did not produce entire personnel file and no record was made of personnel documents not produced]; People v. Guevara (2007) 148 Cal.App.4th 62, 68 [same].) The record on appeal therefore is adequate to permit meaningful appellate review. Having reviewed the sealed reporter's transcript of the in camera proceeding, we conclude the trial court did not abuse its discretion in determining that no material was discoverable.
II. Evidentiary Rulings
Appellant challenges several of the trial court's evidentiary rulings. First, he challenges the admission of the notation on the accident report of White's statement that the Kia was stolen. Second, appellant challenges the admission of Officer Vargas's and Detective Starbird's testimony that the car was reported stolen. Appellant argues, as he did in the trial court, that the admission of the evidence violated the hearsay rule and his constitutional rights to confrontation and due process. We conclude that the evidence was erroneously admitted and that the error was not harmless.
A. White's Statement
The trial court ruled that White's statement was admissible under two exceptions to the hearsay rule: as a declaration against interest (Evid. Code, § 1230) and as a business record (Evid. Code, § 1271). Appellant challenges both bases for the admission of the statement. He contends that White's statement in the accident report was not admissible as a declaration against interest under Evidence Code section 1230 because White was not unavailable, the statement was not sufficiently contrary to her interest, and the statement was not sufficiently reliable to warrant admission. We conclude that the statement was not admissible as a declaration against interest because White was not unavailable for purposes of the statute.
The statute provides: "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, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
In order for a hearsay statement to be admissible under the declaration-against-interest exception to the hearsay rule, "[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 610-611.)
"A witness is considered '"unavailable"' if '[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.' ([Evid. Code], § 240, subd. (a)(5).) Factors that a court should consider in determining whether reasonable diligence has been shown include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored. [Citation.]" (People v. Thomas (2011) 51 Cal.4th 449, 499-500.)
The prosecutor subpoenaed White on the date the trial was set to begin, but he did not expect her to comply with the subpoena. At trial, the prosecutor stated that, after the subpoena was served, he learned that "there's some rule that says that outside of a 150-mile halo of L.A. County, I'm to get the court's approval before I can even have that personally served and be valid and have a warrant issued, which is why when I found out that the warrant had been issued and held on Monday, I kind of called it quits on asking for the warrant to actually be issued because we had not gone through that process."
Penal Code section 1330 provides that "[n]o person is obliged to attend as a witness before a court or magistrate out of the county where the witness resides, or is served with the subpoena, unless the distance be less than 150 miles from his or her place of residence to the place of trial, or unless the judge of the court in which the offense is triable . . . shall endorse on the subpoena an order for the attendance of the witness."
The record indicates that reasonable diligence was not exercised to obtain White's attendance. We therefore find that she was not unavailable and that her statement accordingly was not admissible under the declaration-against-interest exception to the hearsay rule.
Nor was the statement admissible under the business records exception to the hearsay rule. The business records exception provides as follows: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271.) The purpose of the statute is "to eliminate the necessity of calling each witness and to substitute the record of the transaction instead. [Citations.]" (People v. Crosslin (1967) 251 Cal.App.2d 968, 975.)
We disagree with respondent's contention that appellant forfeited his challenge to Van Voorhis's testimony. Defense counsel strenuously and repeatedly objected to the admission of her testimony, the rental agreement, and the accident report containing White's statement.
"[T]he business records exception has been held inapplicable to admit police reports into evidence for the sheer reason such are or might be based upon the observations of victims and witnesses who have no official duty to observe and report the relevant facts [citations]." (People v. Hernandez (1997) 55 Cal.App.4th 225, 240 (Hernandez)?)White's statement that the car was stolen is similar to a police report because it was based solely on her report of the alleged facts. In fact, the statement admitted here is even less trustworthy than a police report because, rather than being given to a police officer, the statement was made to an unknown employee who took the call and wrote a note about it. Van Voorhis testified that she did not know who received White's statement that the car was stolen.
There was no evidence that the employee who took White's telephone call was obligated to record the information in an accurate manner. (Cf. Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205 [testimony that the public employees who took and recorded 911 calls "were obligated to record the information in an accurate manner laid the foundation for the admission of the records as official records to establish that the 911 calls were placed to the [police]"].) Nor was there any evidence that White herself was under any duty to accurately report information, or that she even made the call herself. (See ibid. [no foundation to permit the records of 911 calls "to be offered for the truth of the matter asserted in the calls by the individuals who telephoned the [police] because those individuals were not under a duty to accurately report information"].)
The notation on the accident report that White said the car was stolen accordingly suffers from "multiple layers of hearsay. 'When multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible. (Evid. Code, § 1201.)' [Citation.]" (People v. Ayers (2005) 125 Cal.App.4th 988, 995 (Ayers).) The notation of White's statement that the car was stolen was inadmissible hearsay.
B. Testimony of Officer Vargas and Detective Starbird
Appellant also contends that the trial court erred in admitting the testimony of Officer Vargas and Detective Starbird that the car was reported stolen. We agree.
We note that defense counsel did not object to Detective Starbird's testimony. Appellant contends, however, that any objection would have been futile based on the trial court's rejection of his numerous objections to the admission of White's statement that the car was stolen, as well as his objection to Officer Vargas's testimony. Respondent does not address whether the objection was forfeited and instead addresses appellant's arguments on the merits. We agree with appellant that any objection would have been futile. (See People v. McKinnon (2011) 52 Cal.4th 610, 654 [excusing the defendant's failure to object to testimony because an objection would have been unsuccessful]; People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365, fn. 8 [same].)
Like the accident report containing White's statement that the car was stolen, Officer Vargas' and Detective Starbird's testimony that the car was reported stolen contained multiple layers of hearsay. As discussed above, there was no evidence that White was under any obligation to report information accurately. The testimony of both officers accordingly was inadmissible hearsay as well. (Evid. Code, § 1201; Ayers, supra, 125 Cal.App.4th at p. 995.)
C. Error not Harmless
The erroneous admission of White's statement that the car was stolen, through the accident report and the officers' testimony, was prejudicial. A trial court's decision to admit evidence is a matter committed to its discretion "'and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 534.) A miscarriage of justice is found when "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.)
Other than White's inadmissible hearsay, there was only circumstantial evidence that the car was stolen: the paper over the license plates, the lack of paperwork in the car, and appellant's inconsistent statements that the car belonged to a friend and that he did not know to whom the car belonged. Although this evidence might be sufficient for a jury to infer that the car was stolen, it is not so strong as to compel that inference. Moreover, the prosecutor repeatedly referred to White's inadmissible hearsay in his closing argument in order to establish that the car was stolen, reiterating her statement that the car was stolen from the AM/PM parking lot.
We conclude that it is reasonably probable that an outcome more favorable to appellant would have resulted if the jury had only considered the circumstantial evidence, and not White's statement that the car was stolen. Because it is reasonably probable that a result more favorable to appellant would have been reached in the absence of the erroneously admitted evidence, we conclude that the error was not harmless and therefore reverse the conviction. (See Hernandez, supra, 55 Cal.App.4th at pp. 243-244 [reversing convictions where the erroneous admission of hearsay testimony was not harmless].)
In light of our conclusion, we need not reach appellant's contention that his constitutional rights to confrontation and due process were violated. We also do not reach his contention that the prosecutor committed misconduct.
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DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.