Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS202422 Robert P. Ahern, Judge.
HALLER, J.
Joel Armenta appeals from a conviction of second degree murder with a true finding that he personally used a knife to commit the crime. He contends: (1) the evidence was insufficient to support the murder conviction and knife use finding; (2) the trial court erred in admitting statements he made before and after the crime; (3) the trial court erred in admitting expert testimony of an unqualified witness; and (4) the trial court erred in excluding hearsay evidence of his brother's admission that he (the brother) stabbed the victim. We find no error as to the murder conviction. However, we conclude the knife use enhancement must be reversed because the trial court improperly excluded the brother's admission, and the error was prejudicial.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2006, Armenta and his brother Josue Armenta (Josue) attacked Ricardo Bravo while Bravo was leaving a party in a residential neighborhood. During the attack Bravo was stabbed, and he died en route to the hospital. Armenta was convicted of second degree murder, with a true finding that he personally used a knife to commit the crime. At the time of trial, Josue remained a fugitive.
The Attack
Bravo's girlfriend, Sharon Solis, testified that on the night of May 20, she, Bravo, and several other friends went to a party. When Bravo saw Armenta, Josue, and several of their friends arrive at the party, Bravo crouched down and pretended to tie his shoe so that Armenta and the others could not see him. Bravo stated "They're here. Let's go. We've got to go." Solis had met Armenta on one occasion and she also knew Josue by sight.
Bravo, Solis, and their friends left the party. As Bravo and the others were walking to their car, Armenta and Josue called out to Bravo. Bravo stopped and turned around. Armenta and Josue starting hitting him with their fists. Solis did not see any weapons in the brothers' hands. Bravo tried to fight back. One of Bravo's friends grabbed Armenta and threw him on a lawn in front of a house.
Bravo and Josue continued fighting and started moving towards Solis, who was standing in the middle of the street. When Josue and Bravo crossed the street, Josue pinned Bravo against a parked Cadillac and broke a bottle on the right side of Bravo's forehead. Bravo stopped trying to fight and covered his face with his hands. Josue continued hitting Bravo as Bravo covered his face. Solis did not see any weapons other than the bottle.
About a minute or two later, Armenta rejoined his brother and started hitting Bravo as he was pinned up against the car. At this point Solis noticed that Bravo was bleeding. Solis could not see the attackers' hands.
After about two to three minutes, Bravo was able to escape. Bravo ran up the street, leapt over a gate, and went into a backyard. He was bleeding heavily and soaked in blood. Bravo tapped on the sliding glass door of the residence where he sought refuge and asked for help. The residents of the house, including Edward Devine, attempted to assist him. Bravo told Devine he had been hit with a bottle. Bravo died in the ambulance en route to the hospital. His cause of death was determined to be stab and incised wounds of the neck, torso, and upper extremities. The wounds were caused by a knife.
Personal Knife Use
Relevant to the personal knife use allegation, Solis testified that when Bravo was pinned against the car, his back was to the car, his knees were bent, and he was covering his face with his hands. The Armenta brothers were standing in front of him, very close to his body. They were not making "loud" movements with their arms; rather, their arms "were always very close to their bodies." Bravo (who had experience boxing) was moving from side to side, bowing his head low, and bending over to try to protect his face and body.
Solis was standing to the right about two to three feet away, and tried to stop the fight by hitting the brothers with her purse. Josue was on the right side of Bravo's body and Armenta was on the left side of his body. Bravo managed to escape by turning towards his left, ducking under the brothers, and running away.
At some points during her testimony, Solis reversed this description, placing Armenta on the right side and Josue on the left side. We shall discuss these discrepancies in our analysis of Armenta's contention that there is insufficient evidence to support the verdict.
Autopsy findings showed a total of 20 stab and incised wounds, with a significant number of them located on the left side of Bravo's body, both in the front and back. On the front left side of Bravo's body, there was a deep wound on his upper left armpit area that appeared to be a defensive wound that occurred when his arm was raised. Also on the front left side, there was a stab wound on Bravo's left cheek; an incised wound that extended from his left cheek into the left part of his neck; and a stab wound below his left collarbone. On the back left side of Bravo's body, there was a stab wound behind his left ear; a stab wound in his upper left shoulder; and three stab wounds in back of his left arm. There were incised wounds running from the mid-portion of the back of Bravo's head and neck to the top of his left ear.
This was the most lethal wound because it involved a major artery and vein.
There were a lesser number of wounds on the right side of Bravo's body, consisting of a deep stab wound in his right chest area; a superficial incised wound on the right side of his face; and an incised wound on his right hand. There were also a series of bruises across his forehead caused by a blunt force injury; two stab wounds to the top of his lips; an incised wound to his lower lip; a deep stab wound in the mid-portion of the back of his head that appeared to have turned into an incised wound from movement; a stab wound in his lower back; and defensive-type wounds on both of his arms. Many of the wounds appeared to run from a left to right direction on Bravo's body.
The medical examiner who performed the autopsy, Dr. Glenn Wagner, opined that Bravo's injuries were caused by a single-edged knife. Further, it appeared that only one weapon was used, although it was possible that two assailants inflicted the wounds with identical knives. Considering the autopsy findings and the facts of the attack as described by Solis, Dr. Wagner opined that it was likely the assailant on Bravo's left stabbed him. However, Dr. Wagner also noted the injuries to the right side of Bravo's body would have been easier to inflict by an assailant on the right side. Relying on Dr. Wagner's findings and Solis's description of the attack, a second prosecution expert, Donald Partch, opined that the "primary stabber" was the person on the left, and that Armenta was "the primary assailant."
Jury's Verdict and Sentence
The jury convicted Armenta of murder, but could not agree on whether it was first or second degree murder. Accordingly, the trial court set the degree at second degree murder. The jury also found true the allegation that Armenta had personally used a knife to commit the offense. (Pen. Code, § 12022, subd. (b)(1).) Armenta was sentenced to 15 years to life for the second degree murder conviction, plus a one-year term for the personal knife use finding.
DISCUSSION
I. Sufficiency of the Evidence
Armenta contends the evidence was insufficient to support the jury's findings that he committed murder and that he personally used a knife.
When reviewing a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably support the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
The murder conviction is supported by the record. Murder requires a killing committed with the specific intent to kill or resulting from an intentional act that is dangerous to life and which was deliberately performed with conscious disregard for life. (People v. Blakeley (2000) 23 Cal.4th 82, 87.) Armenta could be found culpable for murder if he was the assailant who actually inflicted the fatal stab wounds or if he acted as an aider and abettor. A defendant is liable as an aider and abettor when he or she (1) has knowledge of the perpetrator's unlawful purpose, (2) intends to commit or encourage the offense, and (3) by act or advice aids or encourages commission of the offense. (People v. Hill (1998) 17 Cal.4th 800, 851.) Further, an aider and abettor is liable for all crimes that are a natural and probable consequence of the intended offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
The prosecutor argued to the jury that Armenta could be guilty of murder as either a direct perpetrator or as an aider and abettor, and the jury was instructed on both theories.
Solis testified that she recognized Armenta as one of the persons attacking Bravo. Solis described the assailants as standing very close to the victim. Given this close proximity, the jury could infer that both assailants knew the victim was being stabbed. An intentional stabbing is a life-threatening act that supports an inference of intent to kill or conscious disregard for life. Based on the evidence showing Armenta participated in the attack and was aware that Bravo was being stabbed, the jury could reasonably infer that he participated in the attack with the requisite knowledge and intent for murder. Alternatively, even if the jury found the intended offense was assault with a deadly weapon, it could reasonably infer that death was a natural and probable consequence of a knife attack so as to establish Armenta's culpability for murder.
The evidence is also sufficient to support the jury's finding that Armenta personally used a knife to commit the offense. Solis testified that Armenta was standing on the victim's left, and Dr. Wagner opined that the nature of the wounds were consistent with the person on the left stabbing the victim. Dr. Wagner's testimony revealed that Bravo suffered numerous wounds on the left side of his body, and a lesser number of wounds on the right side of his body. The jury was entitled to credit Solis's testimony that Armenta was standing on the left, and to infer that the person on the left was in the best position to, and did, inflict the wounds on the left side of the body.
To support his challenge to the jury's findings, Armenta points out that Solis gave contradictory testimony regarding which brother was on the left side of the victim's body. Although there were discrepancies in Solis's testimony on this point, she ultimately provided sufficient clarification to support a finding that Armenta was on the left.
When the prosecutor first asked Solis to describe the location of Josue and Armenta when Bravo was pinned against the car, Solis testified they were in front of Bravo, with Josue standing on Bravo's right and Armenta on Bravo's left. Shortly thereafter, the prosecutor again asked her to describe their location. She testified in reverse, stating that Armenta was on Bravo's right and Josue was on Bravo's left. During continued questioning, she again stated Josue was on the left. Later, when asking Solis how close the brothers were to Bravo, the prosecutor referred to Josue as being on the right.
On cross-examination by defense counsel, Solis described Armenta as being on the left of Bravo. The exchange was as follows:
"[Defense counsel:] And you said that Joel [Armenta] was to the left of your boyfriend; correct?"
"[Solis:] He was in front of [Bravo], but he was to the left of Josue, yes."
"[Defense counsel:] Wait. You mean to the right of Josue?"
"[Solis:] To the left — to my left. If I'm [Bravo], Josue was standing in front of [Bravo] a little bit to his right, and Joel [Armenta] was standing right next to him on his left." (Italics added.)
The court then stated that the record showed Solis used her left hand to indicate Armenta was "[t]o the left of the victim," and she used her right hand to indicate Josue was "to the right of the victim."
Prosecution witness Partch testified that he met with Solis before trial to reenact the fight. According to Partch, during this meeting Solis placed Armenta to the left and Josue to the right of the victim's body, and placed herself closely behind and to the side of Josue.
Solis's testimony on cross-examination, buttressed by the trial court's description of her hand movements, presented a careful description of where Armenta was standing. In this testimony, Solis placed Armenta on the left of Bravo's body. When evaluating whether Solis's testimony on this point was accurate, the jury could consider that the directional testimony was easily subject to confusion and that Solis may have misspoken when she earlier stated Armenta was on the right. The jury could reasonably conclude that her final clarification of the matter during cross-examination convincingly established Armenta's location. Alternatively, given the extensive nature of the wounds on both sides of the victim's body, and Dr. Wagner's testimony that two knives could have been used, the jury could also reasonably conclude that both brothers stabbed the victim.
There is substantial evidence to support the verdict that Armenta committed second degree murder and that he personally used a knife.
II. Admission of Armenta's Threats to Kill the Victim and Attempt to Dissuade a Witness
Armenta argues the trial court abused its discretion and violated his due process rights by admitting evidence that before the crime he had threatened to kill Bravo, and after the crime he attempted to dissuade a witness from testifying. The argument fails.
Prior to trial, the prosecutor moved to admit statements Armenta made to various friends expressing his intent to kill Bravo. The prosecutor explained the threats arose after several incidents involving Bravo which apparently angered Armenta. The proffered evidence consisted of the following statements made by Armenta. (1) Sometime after a 2005 incident in Tijuana, Armenta told Andre Gonzalez that he "wanted to kill [the victim] ever since the Tijuana incident." (2) In or about November or December 2005 Armenta told Daniel Gutierrez that he was looking to kill Bravo. (3) In or about November or December 2005 Armenta told Belinda Ramos that he would "kill the victim if he sees him on the street." (4) In or about November or December 2005 Armenta told Bravo (overheard by Ramos) that he should meet him down the street so he could "cap" (i.e., shoot) Bravo. The prosecutor also proffered a statement reflecting Armenta's attempt to dissuade Gonzalez from testifying. This statement was made in August 2006 when Armenta was in jail after the May 2006 stabbing of Bravo. Armenta told Gutierrez to tell Gonzalez, "You'd be a rat if you [testified], and you know we don't like rats."
The prosecutor stated that if Gutierrez denied that Armenta made this threat, he would call Belinda Ramos to testify that Gutierrez told her about the threat and told her to stay away from Bravo or she would also be killed or hurt.
Armenta asserted there was an insufficient foundation for the statements and they were too remote from the May 2006 stabbing. The prosecutor argued the evidence was not stale because information acquired during the case investigation revealed the conflict was ongoing and that Bravo was avoiding Armenta because he was afraid of him.
The prosecutor stated that Ramos, a close friend of Bravo, reported that Bravo knew about the threats against his life and was avoiding Armenta. Further, another individual reported that at a party on May 19 (the day before the stabbing), Bravo sought to reconcile with a group of Armenta's friends, but instead the friends threatened Bravo.
The trial court ruled the statements were admissible to prove intent and planning, and concluded they should not be excluded under Evidence Code section 352 because the probative value of the statements outweighed their prejudicial effect.
At trial, Gonzalez, Ramos, and Gutierrez testified that they were friends with both Armenta and Bravo and they all used to spend time together. However, in 2005 a problem developed between Armenta and Bravo in Tijuana. Gonzalez testified that after the Tijuana incident, about five or six months before Bravo was killed, Armenta told Gonzalez on a couple of occasions that he hated Bravo and wanted to kill him. About one or two months before Bravo was killed, Armenta told Gonzalez that he had a "bullet for [Bravo's] ass."
Ramos testified that sometime after October 2005, Armenta told her he was going to kill Bravo if he saw him on the street and that he would kill her as well if she was with Bravo. At a party in about November or December 2005, she heard Armenta tell Bravo to meet him down the street because he was going to "cap" him. Ramos testified that Bravo was afraid of Armenta's threats and he was trying to avoid Armenta.
Gutierrez was also called to testify by the prosecution. However, Gutierrez denied that Armenta stated he was looking to kill Bravo. In impeachment, Ramos testified that sometime after November 2005 Gutierrez told her Armenta was looking to kill Bravo and that she should stay away from Bravo or she would be killed as well. Gutierrez also denied that when he visited Armenta in jail a few months after the crime, Armenta told him to tell Gonzalez not to testify, that Gonzalez would be a rat if he testified, and that he did not like rats. In impeachment, Gonzalez testified that Gutierrez did communicate these statements from Armenta to him.
On appeal, Armenta argues the court should have excluded the statements because they were irrelevant and more prejudicial than probative under Evidence Code section 352. He contends the prosecutor's representations regarding the statements lacked specificity as to time and place which made them impossible to defend against. He asserts the statements, occurring several months before and after the crime, were remote. Finally, he argues the statements were prejudicial because they would evoke an emotional bias against him.
Relevant evidence means evidence that has any tendency to prove or disprove any disputed material fact. (People v. Boyette (2002) 29 Cal.4th 381, 428.) Evidence is unduly prejudicial if it is likely to "provoke emotional bias against a party or to cause the jury to prejudge the issues upon the basis of extraneous factors." (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) The test for undue prejudice is whether the evidence " ' "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues," ' not the prejudice 'that naturally flows from relevant, highly probative evidence.' " (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) On appeal, we review the trial court's evidentiary rulings for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337.)
The trial court did not abuse its discretion in admitting the evidence of Armenta's statements. The prosecutor's offer of proof provided sufficient specificity as to the timeframe and content of the statements to allow preparation of a defense. Further, the court reasonably found the statements were relevant and not unduly prejudicial. Armenta's repeated statements over the course of several months that he wanted to kill Bravo were relevant to show premeditation and his intent to participate in the crime, and were not so far removed from the time of the crime as to compel a finding that they were too remote. The implied threat directed at dissuading Gonzalez from testifying was relevant to show consciousness of guilt. The threat was not too remote because it was made while Armenta was awaiting trial on the charged offense. The statements did not relate to extraneous matters that would likely evoke an emotional bias unrelated to the issues, but were highly probative on the issues of planning, intent, and state of mind after the crime. There was no abuse of discretion, and accordingly no violation of due process. (See People v. Tafoya (2007) 42 Cal.4th 147, 165, fn. 5.)
Given our holding, we need not address the Attorney General's waiver arguments.
When arguing before the trial court, the parties did not directly discuss this statement made by Armenta after the crime, and the trial court did not expressly rule on its admissibility. In any event, the relevancy of this statement was apparent.
III. Partch's Qualifications as an Expert
Armenta argues the trial court erred in ruling that Partch was qualified to testify as an expert.
Prior to trial, defense counsel moved to exclude Partch's expert testimony on the basis that he lacked the requisite expertise. The prosecutor stated he intended to call Partch as an expert on the "dynamics of knife attacks" to support the theory that Armenta was "the stabber in this case."
At an Evidence Code section 402 hearing held to evaluate Partch's qualifications, Partch testified that he had training and experience in the dynamics of knife attacks. He had been a police officer for 31 years, and was currently employed as a "Use of Force Coordinator and Rangemaster" for the city of Chula Vista. As a police officer, he responded to and investigated many knife attacks and observed the knives used and the wounds caused by those knives. He received extensive instructor's training on how to defend against a knife attack and how to use a knife in a defensive situation, and taught these skills at police academies. The training involved learning how an assailant might hold a knife, the type of cuts that might be inflicted, how to move the body, and how to deliver cuts. To advance his knowledge, he also watched actual footage of knife attacks. He stated that when a knife attack involves movement by the victim, he could provide information that would assist the jury in determining where the wounds came from because the victim's movement "adds a whole different dimension to what [was] occurring." He acknowledged he had never recreated a knife attack, although on one occasion he had testified to explain why an officer was justified in shooting in response to a knife attack. He also indicated he had no training in crime scene reconstruction and no medical training.
Defense counsel argued that because Partch had not been trained in crime scene reconstruction, he should not be permitted to give an opinion as to what occurred on the night of the crime. The trial court ruled that based on Partch's extensive experience as a police officer and his training in the use of knives, he was qualified to testify as an expert. The court noted the jurors would be instructed that they did not have to accept the expert's opinion but could give it the weight they thought it deserved.
At trial, Partch testified regarding his training and experience teaching officers about knife use. He explained that although he focused his instruction on how to defend against a knife, to do this he had to teach students how to effectively use a knife. He acknowledged that he had no training in crime scene reconstruction.
He then presented his views about how the knife attack occurred. When the prosecutor asked Partch to opine who the stabber was, the prosecutor told him to hypothetically assume that Josue was to the victim's right and Armenta was to the victim's left; Solis did not observe Josue making any overhead motions after he hit the victim with the bottle; the first time Solis saw blood was when Armenta rejoined the fight; and most of the wounds were from left to right and downward. In response to this hypothetical question, Partch testified that he believed Armenta was the "primary assailant." Subsequently, he opined the "primary stabber" was located to the left of the victim. Partch noted the victim's movement was greatly reduced because he was pinned against the car. He opined the stabber held the knife in an inverted grip and used a downward motion, and noted that Solis told him Josue did not use a downward motion but rather moved his arms "forward and backward." He testified that although it was possible that Josue (the assailant on the right) could have stabbed the victim under his left armpit if the victim turned to the right, the victim's ability to make such a turn to the right would have been "greatly restricted" because he was pinned to the car. On cross-examination, he acknowledged that Josue could have stabbed Bravo in the middle of his back as Bravo was ducking away from his assailant.
On appeal, Armenta reiterates his argument that Partch lacked sufficient expertise because he was not trained in crime scene reconstruction.
A person may testify as an expert "if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Expertise is relative to the subject matter of the testimony, and is not subject to rigid classification according to formal education or certification. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 37.) The issue is whether the witness's "peculiar skill, training, or experience enable[s] him to form an opinion that will be useful to the jury." (People v. Davis (1965) 62 Cal.2d 791, 800.) "If the witness exhibits an unusual skill and knowledge gained from study and experience not possessed by the man on the street he is competent to give an opinion." (People v. Horowitz (1945) 70 Cal.App.2d 675, 689.) Once the trial court determines a witness has sufficient knowledge of the subject matter to entitle the opinion to go to the jury, the question of the degree of the expert's knowledge goes to the weight of the evidence, not its admissibility. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) A trial court's determination of whether a witness qualifies as an expert will not be disturbed on appeal absent a manifest abuse of discretion. (Ibid.)
The evidence showed that Bravo was stabbed during an attack by the defendant and his brother. No eyewitness observed a knife in either assailant's hand. Accordingly, Partch was called by the prosecution to evaluate the known facts about the fight and to provide opinions as to how the knife was used and which assailant was in the best position to use the knife. Based on Partch's description of his training in the field of defensive knife use, the trial court could reasonably conclude that he had advanced knowledge, beyond that possessed by the average person, about how knives are used during fights, and thus he had sufficient knowledge on this subject to be of assistance to the jury. Although he did not have training in crime scene reconstruction, he was not being asked to evaluate and reconstruct a crime scene that involved a broad range of evidentiary items. Rather, he was asked to provide opinions addressing narrow questions related to knife use. Given his extensive training involving knife use during fights, the trial court did not abuse its discretion in concluding he was sufficiently qualified to submit his opinion to the jury.
IV. Exclusion of Josue's Statement that He Stabbed the Victim
Armenta argues the trial court erred in excluding a declaration against penal interest made by Josue, in which Josue stated that he stabbed Bravo. He asserts the error requires reversal of both the murder conviction and the knife use finding.
Background
The prosecutor called Isaih Veytia to testify in the prosecution's case-in-chief. At the time of Bravo's murder, Veytia was living with Armenta and his family. Veytia testified that Armenta and Josue came home in the early morning hours of May 21, 2006. Armenta and Josue looked "pretty fucked up." They both had blood on them. Armenta had a cut over his left eye and was bleeding badly down the side of his face. Armenta told Veytia that he "ran into [Bravo]," and that Josue "whooped [Bravo's] ass pretty good." Thereafter, Josue left the residence, and Armenta went to his room to sleep.
When questioned by the prosecutor, Veytia denied that he told a defense investigator that Armenta told him that " 'they' — meaning [Armenta] and his brother — 'had [Bravo's] ass whooped really good.' " (Italics added.) To impeach this portion of Veytia's testimony, the prosecutor called the defense investigator (Dina Barron) to testify. Barron testified that Veytia told her that Armenta stated "they have Rigoberto's ass whooped."
On cross-examination of Veytia, defense counsel asked if Josue told Veytia that he stabbed the victim. Veytia answered, "Yes, he did." When the prosecutor objected on hearsay grounds, defense counsel proffered the statement as a declaration against Josue's penal interest. The trial court sustained the prosecutor's objection.
The prosecutor did not request that Veytia's answer to the question be stricken from the record. However, the jury was instructed that when an objection to a question is sustained, the question should be ignored. (CALCRIM No. 222.) Here, defense counsel's question asked whether Josue stated he stabbed the victim. The jury knew it was required to ignore the question, and Veytia's affirmative answer had no meaning divorced from the question. We are satisfied the jury understood it could not consider the evidence of Josue's admission.
Thereafter, the parties and the court revisited the issue of the admissibility of Josue's statement to Veytia as a declaration against penal interest. At an Evidence Code section 402 hearing to assess admissibility, the parties examined Veytia and a defense investigator (Barron) who had interviewed Veytia. At the hearing, Veytia testified that Josue told him he stabbed Bravo. Further, Veytia claimed that he reported to Barron that Armenta did not commit the stabbing. According to Veytia, when Barron asked Veytia how he could be so sure, Veytia told Barron that Josue had made the following admissions: " 'I fucked up"; "I stuck him"; "He hit me and I stuck him;" "It's his fault. . . . If he would have gone down, ah, he'd still be alive. Nobody hit me and I stuck him.' "
In contrast, Barron testified that when she interviewed Veytia, Veytia did not tell her that Josue stated he stabbed Bravo. Barron testified that Veytia stated the brothers told him what happened; he could not tell Barron what they said; and all he could tell Barron was "that [Armenta] was not responsible for the death of [Bravo]." In a memorandum prepared by Barron near the time of the interview with Veytia, Barron set forth this description of the interview, making no reference to an admission by Josue that he stabbed the victim.
During the Evidence Code section 402 hearing, the parties and the court also discussed the manner in which defense counsel discovered Veytia's claim about Josue's admission. Defense counsel explained that Veytia initially refused to discuss the case with defense counsel, and Veytia did not inform defense counsel about Josue's admission until shortly before or at the start of trial.
The trial court concluded the evidence should be excluded because Veytia's proffered testimony that Josue made the admission was not credible. The court stated that Veytia's and Barron's testimony on this point was in conflict and that one of these witnesses was lying. The court concluded that it did not believe Veytia's testimony that Josue made the admission because defense investigator Barron had no motive to lie about what Veytia reported during the interview. The court also noted the timing of the disclosure; i.e., that Veytia did not disclose Josue's purported admission to defense counsel until shortly before trial. Defense counsel objected to the court's ruling, arguing the issue of Veytia's credibility was a matter for the jury to resolve, and any doubts as to his credibility went to weight, not admissibility.
Governing Law
Under the declaration against penal interest exception to the hearsay rule, a declarant's out-of-court statement may be admitted for the truth of the matter if the declarant is unavailable as a witness at trial and the statement was against the declarant's penal interest. (Evid. Code, § 1230; People v. Cudjo (1993) 6 Cal.4th 585, 606-607.) Further, the trial court must determine, as preliminary facts, (1) "that the out-of-court declarant made the statement as represented," and (2) "that the statement meets certain standards of trustworthiness." (People v. Cudjo, supra, at p. 608.)
When making the first determination—i.e., whether the statement was made as represented by the in-court witness—the trial court does not generally determine the credibility of the in-court witness who is testifying regarding the declarant's statement. (People v. Cudjo, supra, 6 Cal.4th at p. 608.) Because the exclusion of hearsay statements is premised on the lack of oath and the inability to cross-examine and observe the declarant's demeanor, "[n]either the hearsay rule nor its exceptions are concerned with the credibility of witnesses who testify directly to the jury." (Ibid.) Accordingly, the trial court merely determines whether there is sufficient evidence to sustain a finding that the statement was made. (Ibid.) "[T]he trial court must determine whether the evidence is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence [citation], even if the court personally would disagree [citations]." (People v. Marshall (1996) 13 Cal.4th 799, 832-833.)
Under the substantial evidence standard governing this preliminary fact determination, the direct testimony of a single witness is sufficient to support a finding. (People v. Cudjo, supra, 6 Cal.4th at p. 608.) The only exception to this rule is when "the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' " (Ibid.) Accordingly, the trial court's ability to exclude hearsay testimony based upon an evaluation of the testifying witness's credibility is limited to circumstances showing demonstrably false testimony. (Id. at p. 609; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1011.) "Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury's resolution; such doubts do not afford a ground for refusing to admit evidence under the hearsay exception for statements against penal interest." (People v. Cudjo, supra, at p. 609.)
When making the second determination—i.e., the trustworthiness of the declarant's statement—the trial court assumes the declarant made the statement, and evaluates whether the circumstances indicate the declarant was probably telling the truth when he or she made the statement. (See People v. Cudjo, supra, 6 Cal.4th at pp. 607-608; People v. Duarte (2000) 24 Cal.4th 603, 614.) "To determine whether the declaration passes the required threshold of trustworthiness, a trial court 'may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' " (People v. Cudjo, supra, 6 Cal.4th at p. 607.)
A trial court's determination of both these preliminary facts is reviewed for abuse of discretion. (People v. Tafoya, supra, 42 Cal.4th at p. 165.)
Analysis
There is no dispute that the evidence of Josue's statement satisfies the unavailability and against-penal-interests requirements of the hearsay exception. Further, there has been no assertion, and the record does not indicate, that Josue made the statement under untrustworthy circumstances. Josue made the admission shortly after the crime and during a conversation with a housemate. There is nothing to suggest that Josue had a reason to lie when speaking with Veytia.
The dispute concerns solely whether Josue's statement was made as represented by in-court witness Veytia. The court excluded the evidence based on a finding that Veytia's testimony on this point was not credible because it was contradicted by Barron's testimony, Barron had no motive to lie, and Veytia delayed in disclosing the statement to defense counsel. The Attorney General concedes the trial court erroneously relied on its own credibility assessment of an in-court witness to exclude the evidence. We agree the court erred in this regard. The trial court did not inquire whether Veytia's testimony comprised a "rare instance[] of demonstrably false" testimony because it was physically impossible or so apparently false that no reasonable juror could credit it. (People v. Cudjo, supra, 7 Cal.4th at p. 609.) The trial court applied the wrong standard—i.e., rather than confining its evaluation to whether the testimony was demonstrably false and, if not, leaving the credibility assessment for the jury, the court rejected the testimony based on a finding that it was not credible.
Notwithstanding this error, the Attorney General argues that we should not disturb the court's evidentiary ruling because Veytia's testimony was demonstrably false. To support this assertion, the Attorney General cites the portion of Veytia's testimony claiming that Josue stated: "If he would have gone down, ah, he'd still be alive . . . ." (Italics added.) Noting that Bravo fled on foot after the stabbing, the Attorney General contends it was not possible that Josue knew that Bravo had died from the attack when he spoke with Veytia.
Demonstrably false evidence is evidence that is " 'fantastic' "; or " 'more than unusual' "; or "that does 'violence to reason.' " (People v. Jones (1968) 268 Cal.App.2d 161, 165.) The falsity must be apparent without inferences or deductions. (See People v. Cudjo, supra, 6 Cal.4th at p. 608; In re Frederick G. (1979) 96 Cal.App.3d 353, 367.) That is, " 'there must exist either a physical impossibility of the evidence being true, or such a state of facts so clearly apparent that nothing need be assumed nor inferences drawn to convince the ordinary mind of the falsity of the story.' " (Back v. Farnsworth (1938) 25 Cal.App.2d 212, 219.)
Here, the record cannot reasonably support a finding that Veytia's testimony was demonstrably false. In order to conclude that it was impossible for Josue to know that Bravo had died, it is necessary to infer that Josue had no way of knowing about the death. This inference is not necessarily established by the record. Contrary to the Attorney General's assertion, the record does not definitively establish a timeline showing that Bravo died after Josue spoke to Veytia. There are several factual matters that are not resolved in the record on this point—i.e., the record does not show precisely when news of Bravo's death was first communicated by the authorities, when or if the news was spread to other individuals, and when Josue spoke to Veytia. Notably, the victim and Armenta shared common friends, and at one point had been friends themselves. Absent more information about the communications occurring after Bravo's death and the timing of the Veytia/Josue conversation, the record does not show that news of Bravo's death did not spread among the community of friends and reach Josue before he spoke to Veytia. Additionally, in order to find that Veytia's testimony was inherently false based on the reference to Bravo's death, it is necessary to infer that Veytia fully understood and precisely quoted exactly what Josue stated during the conversation. Given the limits on human perception and recollection, this inference is not compelled. (Cf. People v. Cudjo, supra, 6 Cal.4th at p. 607 [statement may be trustworthy notwithstanding some discrepancies between statement and physical evidence, based on possibility in-court witness did not fully understood what declarant stated].)
According to a police officer who rode in the ambulance with Bravo, Bravo stopped breathing in the ambulance; he was pronounced dead upon arrival at the hospital at 1:31 a.m.; and the medical examiner was notified and dispatched to the hospital. Solis testified that she found out about Bravo's death "that night" while she was at the hospital, but that it took "a while" to receive the information because the authorities wanted to wait for the arrival of the medical examiner. Veytia's testimony merely referred to a conversation with Josue "past midnight[,] sometime that morning."
Moreover, even if the record showed it was impossible for Josue to have known of Bravo's death when he spoke with Veytia, the jury still could have credited the portion of Veytia's testimony stating that Josue admitted stabbing the victim. A jury may accept portions of a witness's testimony while rejecting other portions. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Thus, even if the part of Veytia's testimony quoting Josue as stating "he'd still be alive" was characterized as inherently false, the jury could still credit the part of Veytia's testimony quoting Josue as stating he stabbed the victim.
Finally, there was nothing in Barron's testimony that rendered Veytia's testimony demonstrably false. To the contrary, Barron's testimony that Veytia disclosed during the interview that Armenta was not responsible for the victim's death can be construed as consistent with Veytia's testimony that Josue admitted stabbing the victim. The inconsistency between Barron's and Veytia's summation of the interview is that Veytia stated he disclosed the admission, whereas Barron stated he did not. Because a jury may credit portions of a witness's testimony while rejecting other portions, the jury could credit Veytia's testimony that Josue made the admission, while rejecting Veytia's testimony that he informed Barron of the admission. For purposes of evaluating the knife use allegation, evidence that Josue stated he stabbed the victim would be a key evidentiary item, regardless of whether Veytia fabricated his claim that he told Barron about this admission or whether Veytia misquoted or fabricated Josue's reference to Bravo being dead.
Because the record cannot reasonably support a finding that Veytia's testimony was demonstrably false, there was no basis to exclude the statement based on the trial court's assessment of Veytia's credibility.
Prejudice
The Attorney General argues the exclusion of Josue's admission that he stabbed the victim was harmless. We agree the error does not require reversal of the second degree murder conviction under either the harmless beyond a reasonable doubt standard for federal constitutional error or the reasonable probability of a more favorable outcome standard for state law error. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1104; People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) An admission by Josue that he stabbed the victim did not detract from the evidence that Armenta participated in the assault resulting in Bravo's death. Thus, even if the excluded evidence had persuaded the jury that Josue was the sole stabber, this would not have affected the murder verdict under an aiding and abetting theory.
However, the error was not harmless as to the personal knife use finding even under the state law standard requiring reversal only if it is reasonably probable that a more favorable verdict would have been reached absent the error. (People v. Fudge, supra, 7 Cal.4th at p. 1104.) A reasonable probability of a different result exists when there is " 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.' " (People v. Mower (2002) 28 Cal.4th 457, 484.) Although there was sufficient evidence to support the jury's personal knife use finding, the evidence raised multiple evidentiary questions that could have reasonably caused the jury to conclude the prosecution did not prove this allegation beyond a reasonable doubt.
The evidence does not conclusively show whether Bravo was stabbed by both, or only one, of his assailants. Assuming the jury believed only one person stabbed Bravo, the evidence does not conclusively show whether the stabber was on the left or right of the victim, nor whether Armenta was the person on the left. For example, as noted, Solis's testimony regarding the location of the brothers was not consistent. Further, Solis testified that when Bravo was pinned to the car, Josue was "extremely close" to Bravo and that Josue's "shirt was touching Bravo." When the prosecutor asked how close Armenta was, Solis stated he was also "very close" but she could not give an estimate of "exactly how close he was." From this testimony, the jury could infer that Josue was standing the closest to the victim and was more likely to have inflicted the stab wounds. Additionally, the prosecution's experts recognized that stab wounds could have been inflicted by the person on the right. For example, the experts testified that it would have been easier for the assailant on the right to inflict the wounds on the right; the assailant on the right could have reached Bravo's left armpit if Bravo turned to the right; and the assailant on the right could have stabbed Bravo in the back as he was ducking away. Particularly because of the movement that was occurring during the stabbing, resolution of the issue of whether the prosecution had proven the knife use allegation required the jury to make numerous factual inferences and resolutions. The proffered admission by Josue that he stabbed the victim was a significant evidentiary item that could have played heavily in the jury's consideration of the personal knife use allegation.
Under these circumstances, although "[t]he actual verdict was reasonable, . . . so too would have been a different one." (People v. Humphrey, supra, 13 Cal.4th at p. 1090.) It is reasonably probable that if the jury had been presented with an admission by Josue that he stabbed the victim, the jury would have reached a different result on the issue of whether Armenta personally used a knife during the attack. Accordingly, it is necessary to reverse the personal knife use enhancement.
DISPOSITION
The judgment is affirmed as to the second degree murder conviction and the 15-years-to-life sentence for that conviction. The judgment is reversed as to the personal knife use enhancement and the accompanying one-year sentence. The prosecution is entitled to retry this enhancement. If the prosecution chooses not to retry the knife use
enhancement, an amended abstract of judgment removing the one-year determinate term shall be sent to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., NARES, J.