Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C159922
Jenkins, J.
Defendant Henry James Beckwith appeals from a judgment entered after a jury found him guilty of robbery in violation of Penal Code section 211. Defendant contends his conviction must be reversed because the trial court prejudicially erred by refusing to admit his exculpatory statement during the prosecution’s case-in-chief. Defendant also contends reversal is warranted because the trial court erred by allowing the arresting officer to express an opinion about whether he witnessed a robbery. We affirm the judgment.
Further statutory references are to the Penal Code unless otherwise noted.
Procedural Background
In an information filed on December 5, 2008, the Alameda County District Attorney (DA) charged that on or about September 14, 2008, defendant committed second degree robbery in violation of section 211 by taking personal property from Sergio Ramirez by means of force or fear. The information also alleged that defendant suffered a prior felony conviction for first degree residential burglary (§ 459), a serious felony within the meaning of section 667, subdivision (a)(1). The information further alleged that if convicted of the current offense defendant is subject to the two strikes law under sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1).
A jury trial commenced on January 28, 2009. On behalf of the prosecution, the jury heard testimony from the victim, Sergio Ramirez, and Oakland Police Officer Eriberto Perez-Angeles. Defendant testified on his own behalf and the defense also called Officer Perez-Angeles. On February 4, 2009, the jury returned a verdict of guilty on the charge of second degree robbery. At a sentencing hearing held on April 7, 2009, the trial court imposed the upper term of 5 years for robbery doubled to 10 years under the two strikes law, plus 5 years for the prior felony, for a total term of 15 years in state prison. Defendant filed a timely notice of appeal on June 3, 2009.
Facts
Sergio Ramirez testified through a translator that he is a little over five feet tall, weighs one hundred and twelve pounds, and does not understand English. Ramirez stated that on September 13, 2008, he was at a birthday party at a residence near 101st Avenue and International in Oakland. Ramirez stayed at the party for about seven hours and had about four beers. After he left the party, Ramirez caught a bus on International at about 11:00 p.m. Ramirez got off at 82nd Avenue and crossed International on his way home. While crossing International, he noticed a Latino man and an African-American man standing together on the sidewalk opposite. Ramirez identified defendant in court as the African-American man he saw standing on International that night.
Ramirez continued to cross International and when he reached the other side of the street he walked in the direction of 82nd Avenue. All of a sudden Ramirez felt “people’s hands touching me and patting me down.” Ramirez thought he was being robbed, so he put his hands in the air so the robbers would not harm him. When Ramirez saw who was robbing him, he recognized them as the two men he had seen as he crossed International. Defendant searched through Ramirez’s trouser pockets as Ramirez stood with his hands in the air. Defendant removed a cell phone and a wallet from Ramirez’s jeans and gave those items to the Latino man. The Latino man then walked off quickly down International in the direction of San Leandro. Ramirez kept his hands in the air because he was nervous, did not want to be harmed, and thought the men might have weapons. At this point, defendant began searching in Ramirez’s jacket pockets. Suddenly, a police officer pulled up in a patrol car. Ramirez told the officer he needed help and then saw the officer arrest defendant.
Officer Perez-Angeles testified that on the day in question he was on uniformed duty patrolling alone in a marked police car in a “high crime area” between 82nd and 98th Avenue on International. As Perez-Angeles approached the intersection of 82nd Avenue and International around midnight, he noticed something unusual on the sidewalk to his right. An African-American male (later identified as defendant) and a Hispanic male (late identified as Ramirez) were standing very close to one another face to face. Defendant had his back to Perez-Angeles and Ramirez was facing in Perez-Angeles’s direction. As Perez-Angeles pulled his patrol vehicle over to the side, he saw that defendant was searching through Ramirez’s jacket pocket. Perez-Angeles also noticed that Ramirez was holding his arms up with his palms about shoulder height. At that point, based on everything he saw, Perez-Angeles thought a robbery was in progress.
Perez-Angeles got out of his patrol car and walked towards the two individuals. Perez-Angeles approached defendant from behind and it did not appear to Perez-Angeles that defendant saw him coming. As Perez-Angeles drew nearer to the two individuals, Ramirez saw him coming and yelled, “Me esta robando.” Being fluent in Spanish, Perez-Angeles understood that Ramirez said, “He’s robbing me.” After Ramirez said he was being robbed, defendant turned round and saw Perez-Angeles. Perez-Angeles saw a surprised look on defendant’s face. Perez-Angeles detained defendant, placed him in handcuffs and then took a statement from Ramirez. After placing defendant under arrest for robbery, Perez-Angeles searched defendant and did not find a wallet or a cell phone on his person.
Defendant testified that on the night in question he left his sister’s house on 84th and Bancroft at about 10:30 p.m. and walked to the bus stop on International with the intention of taking the 801 bus to Hayward to visit his girlfriend. While sitting at the bus stop defendant noticed an Hispanic man (Ramirez) who appeared to be intoxicated. Ramirez was “staggering” and holding himself up against the bus stop pole while talking on a cell phone in Spanish. When defendant asked Ramirez if he had a cigarette, Ramirez looked confused. Defendant asked again in Spanish, “Y tu tienes uno cigaro?” It appeared to defendant that Ramirez understood the question this time because Ramirez started to rummage around in his pockets. Assuming that Ramirez was looking for his cigarettes, defendant approached Ramirez and stopped a few feet away from him. Then Ramirez raised his hands in the air and said “No, ” so defendant started to move back to his seat on the bench. At that point, defendant saw a patrol car pull up. The officer got out of his vehicle and pointed a Taser at defendant. Defendant asked the officer what was going on, and the officer replied, “You’re trying to take advantage of a drunk paisa, ” meaning a drunk Hispanic. Defendant said, “I’m not taking advantage of him. I’m just trying to ask him for a cigarette.” The officer told defendant to “freeze, ” approached with the Taser still held in his hand and placed defendant in handcuffs. Defendant did not say anything to the officer after he was handcuffed. Defendant denied he was with a Latino man that night and denied taking Ramirez’s cell phone and wallet.
The defense also called Perez-Angeles. On direct examination, defense counsel asked Perez-Angeles if defendant said anything to him before defendant was placed in handcuffs. Perez-Angeles replied, “When I approached and he turned around and looked at me, he looked surprised, and then he stated that he was asking Mr. Ramirez for a cigarette.” Perez-Angeles stated he did not include defendant’s statement in his police report because based on the events he had witnessed he did not believe defendant’s statement.
On cross-examination by the prosecutor, Perez-Angeles stated that on the night in question he was not armed with a Taser, and that as of that date he was not certified to operate a Taser because he had not attended the required 10-hour course. In response to a jury question, Perez-Angeles stated he did not make any comment to defendant about defendant “taking advantage of a paisa.”
Discussion
I
Defendant contends that the trial court committed prejudicial error by refusing to allow defense counsel to question Perez-Angeles on cross-examination about defendant’s statement that he was only asking Ramirez for a cigarette. Defendant asserts that this alleged error was prejudicial because if defendant’s statement had been admitted via Perez-Angeles on cross-examination then defendant would not have had to testify and admit a prior conviction for a crime of moral turpitude.
During cross-examination, defense counsel asked Perez-Angeles if defendant made a statement after he put defendant in handcuffs. The court sustained a hearsay objection to this question.
A. Background
The prosecutor informed the court about defendant’s statement at a pretrial hearing on January 29, 2009. The prosecutor stated: “I told [defense counsel] off the record that I met with Officer Perez-Angeles yesterday, and... I asked if the defendant made any statements. In the report, there are no statements attributable to the defendant, and once he’s arrested, he invokes, so he doesn’t give any statements after that. The officer indicated to me that at the point where the defendant is placed in cuffs and when he’s making his way towards the back of the police vehicle, [defendant]... says something to the effect of, ‘I was asking him for a cigarette.’ And that would be in reference to the victim.”
On February 2, 2009, the trial court ruled on three motions in limine filed by the defense that same day. Defense motion in limine number three argued that Perez-Angeles should be allowed to testify that defendant stated, “I was only asking him for a cigarette.” Defense counsel asserted that defendant’s statement was admissible under Evidence Code section 1250 (hereafter “section 1250”) as “a statement of defendant’s then existing mental state” and was relevant to the issue of intent. The prosecutor objected to defendant’s motion in limine number three, stating, “That’s hearsay, and... if the guy ─ if he wants to testify, he can.” The trial court ruled that defendant’s statement was inadmissible under section 1250 because it was made under circumstances which rendered it untrustworthy.
B. Analysis
Defendant’s contentions of error and prejudice on this point fail on two grounds. First, defendant’s statement is not admissible under section 1250. Second, even if it was admissible under section 1250, the trial court properly excluded it as untrustworthy under Evidence Code section 1252 (hereafter “section 1252”).
Evidence Code section 1250 states: “(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action.... [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” (Ibid.) Evidence Code section 1252 in turn provides, “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (Ibid.)
First, defendant’s statement to Officer Perez-Angeles that he was asking Ramirez for a cigarette is not admissible under section 1250. Evidence is offered under section 1250 “to prove the declarant’s state of mind... at that time.... ” (People v. Ortiz (1995) 38 Cal.App.4th 377, 389; 2 McCormick, Evidence (6th ed. 2006) Spontaneous Statements, p. 267 [state of mind hearsay exception provides for admissibility of only those statements of the declarant that “relate to a condition of mind or emotion existing at the time of the statement”].) Defendant’s statement to Perez-Angeles was made after defendant turned around and saw the officer approach him. Thus, the statement did not concern his then-existing state of mind. Rather, it was a statement of memory or belief to prove the fact that defendant was not robbing Ramirez but was only asking him for a cigarette. In other words, the statement was a declaration of a past event and was therefore correctly excluded under section 1250, subdivision (b).
Second, even if defendant’s statement concerned his then-existing state of mind within the meaning of section 1250, the trial court properly excluded it as untrustworthy pursuant to section 1252. Evidence offered under the state of mind exception to the hearsay rule is inadmissible “if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (Evid. Code, § 1252.) In this regard, “ ‘[a] defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.’ (Citation.) That rule applies here. To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ‘ “made at a time when there was no motive to deceive.” ’ (Citations.)” (People v. Edwards (1991) 54 Cal.3d 787, 820 (Edwards).)
A trial court’s ruling on whether a statement is sufficiently trustworthy to be admitted under section 1250’s state of mind exception to the hearsay rule is reviewed for an abuse of discretion. (People v. Edwards (1991) 54 Cal.3d 787, 819-820; People v. Ortiz, supra, 38 Cal.App.4th at p. 386.) Defendant contends the proper standard of review for this issue is de novo, relying on People v. Cervantes (2004) 118 Cal.App.4th 162, 174 [applying “de novo review of the totality of the circumstances that surround the making of the statement” to issue of whether evidence is constitutionally (as opposed to statutorily) trustworthy, but noting “some disagreement” on whether the standard is de novo or abuse of discretion].) To the extent there is any uncertainty about the applicable standard of review here, we need not resolve it because we reach the same conclusion under either standard of review.
Here, defendant made the statement that he was only asking Ramirez for a cigarette under highly suspicious circumstances. When Officer Perez-Angeles first saw defendant and Ramirez, the officer thought it looked like a robbery-in-progress. When Perez-Angeles went to investigate the suspected robbery-in-progress, he approached from a direction where he was observed by the victim and unobserved by defendant. After the victim said, “He’s robbing me, ” defendant turned round, looked in surprise at the officer and then uttered his statement. Under these circumstances, we have no hesitation in concluding that there was “ ‘ample ground to suspect defendant’s motives and sincerity’ ” when he told Officer Perez-Angeles he was only asking Ramirez for a cigarette. (Edwards, supra, 54 Cal.3d at p. 820 [defendant’s statements properly excluded under section 1252 where he had a “compelling motive to deceive and seek to exonerate himself”]; see also People v. Smith (2003) 30 Cal.4th 581, 628-629 [defendant’s statements of remorse to his wife properly excluded under section 1252 because “his primary motivation in making them was to placate her”].) Accordingly, the trial court did not err by excluding defendant’s statement as untrustworthy under section 1252.
II
Defendant contends that the trial court erred by allowing improper opinion testimony from arresting Officer Perez-Angeles during the defense case. Defendant contends the testimony in question violated his federal constitutional right to a jury trial.
A. Background
After defendant testified, the defense called Officer Perez-Angeles. Defense counsel asked Perez-Angeles if defendant said anything during the incident in question. Perez-Angeles replied that after defendant turned around and saw him, defendant looked surprised and then said he was asking Ramirez for a cigarette. Defense counsel questioned Perez-Angeles about why he had not included defendant’s statement in his police report. Perez-Angeles replied that he did not include defendant’s statement in his report because he did not believe it. The following colloquy ensued:
“[Counsel]: You did not believe him?
[Officer]: No.
[Counsel]: Okay.... [¶]... [¶] When, you’re writing your police reports, do you, yourself, decide what you do and don’t believe when taking a statement from someone?
[Officer]: No, ma’am. It’s the facts and the totality of the circumstances from my observations.
[Counsel]: So because of the observations that you made when you arrived on the scene, are you saying that’s the reason why you didn’t include [defendant’s] statement in your police report?
[Officer]: Yes.”
On cross-examination, the prosecutor elicited testimony from Perez-Angeles recapitulating everything that happened up to the point at which defendant uttered his statement about asking for a cigarette. The following colloquy ensued:
“[Prosecutor]: Officer, from the point you pull up, you see what you’ve already described, the hands up, the defendant going through the pockets, the victim telling you that he’s being robbed in Spanish, the defendant turning round with the surprised look on his face, at that point, is there any doubt in your mind that the victim is being robbed?
[Officer]: No.
[Defense counsel]: Objection, relevance. His state of mind is not an issue.
[Court]: Overruled.
[Officer]: No.
[Prosecutor]: It’s pretty clear he’s being robbed isn’t it?
[Officer]: It is to me, yes.
[Defense counsel]: I would object to the characterization that Mr. Ramirez is being robbed. I think that’s a question for the jury.
[Court]: Overruled. And this evidence is being offered and admitted only for a limited purpose, and that’s this officer’s state of mind.
[¶]... [¶]
[Prosecutor]: And what you’re telling us is that you’re the investigating officer on this case, right?
[Officer]: Yes.
[Prosecutor]: You obviously believe this is a robbery, right?
[Officer]: Yes.
[Prosecutor]: And you didn’t include the cigarette line in the report, because you didn’t believe it, did you?
[Officer]: Yes.
B. Analysis
“A witness may not express an opinion on a defendant’s guilt. (Citations.) The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. (Citations.) ‘Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’ (Citation.)” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman).)
Defendant contends that the above recited testimony of Perez-Angeles violates the rule in Coffman that opinions on guilt or innocence are inadmissible. Defendant’s argument is without merit. Defense counsel placed Perez-Angeles’s state of mind at issue on direct examination. In this regard, defense counsel sought to undermine Perez-Angeles’s credibility by suggesting he was remiss in not including defendant’s statement in the police report because “[Y]ou pick and choose what you do and don’t believe” when compiling police reports. On cross-examination, the prosecutor sought to rehabilitate Perez-Angeles by eliciting testimony designed to show the jury that under the circumstances observed by Perez-Angeles it was reasonable for the officer to discount defendant’s statement, in the inartful words of the prosecutor, as a “line of BS.” Viewed in context, therefore, the prosecution elicited Perez-Angeles’s testimony in order to rehabilitate the credibility of its principal witness on an issue raised by defendant, and the trial court properly allowed it on that basis. (Cf. People v. Cleveland (2004) 32 Cal.4th 704, 746 [principal purposes of redirect examination “are to explain or rebut adverse testimony or inferences developed on cross-examination, and to rehabilitate a witness whose credibility has been impeached”].) Moreover, the trial court instructed the jury that Perez-Angeles’s testimony on this point was admitted for the limited purpose relating to the officer’s state of mind at the time of the incident. In sum, the trial did not err by allowing testimony by Perez-Angeles as described above.
Defendant’s reliance on People v. Torres (1995) 33 Cal.App.4th 37 (Torres) and People v. Brown (1981) 116 Cal.App.3d 820 (Brown) is misplaced. In neither of those cases did defendant “open the door” to the testimony complained of by attacking the credibility of the witness, and in each case the witness’s testimony clearly intruded on an issue reserved to the jury. (See Torres, supra, 33 Cal.App.4th at pp. 46-48 [improper for officer testifying as gang expert to opine on the meaning of the terms robbery and extortion and to express the opinion the crimes committed in this case were robberies]; Brown, supra, 116 Cal.App.3d at pp. 827-829 [expert improperly allowed to give his opinion that defendant was a drug runner where the term “runner” was defined under the instructions given by the trial court].)
We reject defendant’s assertion that the trial court’s limiting instruction was ineffective because “the trial court did not specifically limit the jury to considering whether the officer believed, at the time of the incident, that he was witnessing a robbery.” Such a level of specificity in the limiting instruction was not called for here. The objective of the prosecutor’s cross-examination was to rebut defense counsel’s suggestion that Perez-Angeles gets to “pick and chose” what to include in his police reports. The prosecutor sought to achieve his objective by eliciting testimony from Perez-Angeles concerning his then existing state of mind that he was witnessing a robbery. Patently, only Perez-Angeles’s then existing state of mind is relevant to whether Perez-Angeles thought that under the circumstances he was entitled to discount defendant’s statement about asking for a cigarette.
Furthermore, even if there was any error on this point, it was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. Defendant was literally “caught in the act” by Perez-Angeles while going through Ramirez’s pockets, and Ramirez told the officer he was being robbed. Patently, the jury believed the victim’s version of events and disbelieved the explanation offered by defendant.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J.Siggins, J.