Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF143651. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robin Derman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Anita Mane Bonillas appeals her jury conviction for one count of assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) She claims the trial court prejudicially erred by admitting hearsay testimony about the contents of a voicemail message.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim shared a home. The victim had lived in the home for approximately seven years pursuant to an agreement with the owner to make improvements to the property in lieu of rent. In early 2007, however, the owner wanted the victim to begin paying rent, so he asked defendant, who had been his friend for about five years, to move in with him and pay rent. Defendant executed a lease agreement for $500 per month. However, after a few months, defendant decided she did not want the victim to live in the home with her any longer. In July 2007, she tried to have defendant evicted with a restraining order, but the court declined to issue the order.
On the evening of August 17, 2007, defendant and the victim argued about bills. Defendant told the victim she was going to serve him with a three-day eviction notice. After the victim went to sleep that night, he was awakened about 3:00 a.m. on August 18, 2007, by the presence of four to eight men and a woman in his room. One of these unwelcome visitors gave the victim a three-day eviction notice.
Although there was some conflicting testimony about the events that took place next, the victim testified he got out of bed and headed for the front door so he could get to a nearby telephone booth to call police. The men followed the victim outside, and one of them pushed him down. When he was on the ground, the men surrounded him and began punching him in the head. One of the men struck the victim in the head with a brick. Sometime during the attack, the victim heard defendant yelling and telling him he should have moved out when he had the chance. Neighbors also testified they saw the attackers beating the victim up and heard defendant encouraging the attackers to “beat his ass” and telling him “to get up” and “to pack his stuff because he has orders.” The attackers left when one of the neighbors said she was calling police.
After the neighbor had already called police and the attackers were gone, defendant handed her cell phone to the victim so he could call paramedics. When police arrived, defendant was evasive and denied knowing any of the attackers or letting them inside the home. There was no evidence of a forced entry into the home.
The victim was taken to the hospital where he received 20 stitches to a two-inch gash in his head. When he arrived home from the hospital a few hours later on the same morning, he confronted defendant about the incident, and she said, “Maybe you should pay the rent next time.”
Defendant was charged with assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count 1) and residential burglary (Pen. Code, § 459) (count 2). At the time of trial, the court granted defendant’s motion to dismiss count 2. The jury found defendant guilty of count 1. The court suspended imposition of sentence and placed defendant on formal probation for a period of three years subject to various terms and conditions, including 270 days in jail.
DISCUSSION
During trial, the next door neighbor testified defendant came to her home about 7:30 a.m. on the day of the attack and asked to charge her cell phone. While she was charging the cell phone, the neighbor testified defendant played back her messages using the speakerphone feature. According to the neighbor, defendant received a voicemail message between 1:00 and 3:00 a.m. saying, “Anita, we’re here. Can you open up your gate?” Defense counsel objected to the testimony on hearsay grounds, but the court overruled the objection. In a hearing on in limine motions just prior to trial, the trial court ruled the neighbor’s testimony about the voicemail message was admissible, because it was being admitted for a nonhearsay purpose—to show defendant’s knowledge, intent, and involvement in the attack. Alternatively, the court concluded the voicemail message and defendant’s reaction to it were also admissible under the hearsay exception for adoptive admissions.
Defendant contends the voicemail message was inadmissible hearsay, because it was admitted for the truth of the matter asserted and no exception applied. She also claims it was admitted in violation of her constitutional right to confrontation, because the person who left the voicemail message was not identified and did not testify at trial. She believes it was prejudicial to admit the message, because there were numerous inconsistencies in the testimony of the witnesses, and the message therefore encouraged and “allowed the jury to take a speculative leap and decide that appellant was aware of the attackers’ presence and facilitated the attack.”
“We review the trial court’s determination as to the admissibility of evidence (including the application of the exceptions to the hearsay rule) for abuse of discretion [citations] and the legal question whether admission of the evidence was constitutional de novo [citation].” (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
Unless an exception applies, the hearsay rule bars admission of out-of-court statements of nonparties offered to prove the truth of the matter stated. (Evid. Code, § 1200.) Hearsay evidence includes both written and oral statements, and for purposes of the hearsay rule, a videotape is considered a writing. (Evid. Code, § 250.) However, evidence of an out-of-court statement by a nonparty is admissible if it is “offered for a nonhearsay purpose—that is, for something other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an issue in dispute. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 535-536.)
In People v. Bullock (1990) 226 Cal.App.3d 380, 389-390 (Bullock), for example, the appellate court concluded a police officer’s testimony about cocaine orders he received when he returned calls from the defendant’s pager was admissible for a nonhearsay purpose. The defendant in Bullock was arrested following a traffic stop for driving on a suspended license, and a pager was found in his pocket at the time of the arrest. Police obtained a search warrant for the defendant’s vehicle and found a number of baggies containing marijuana and cocaine. (Id. at pp. 384-385.) While he was being booked, the defendant’s “pager audibly [signaled] on at least 20 occasions that it had received messages. Following each signal, the booking officer pushed [a] button on the pager which caused the calling party’s telephone number or code to be displayed on a screen. When the officer returned the calls, several persons who answered requested the delivery of rock cocaine.” (Id. at p. 383.) The appellate court concluded the evidence obtained from the pager was admissible as nonhearsay, because it was not offered for the truth of the matters asserted. “Rather, [the statements] constituted nonhearsay circumstantial evidence of defendant’s guilt.” (Id. at p. 389.) The callers’ requests for drugs showed defendant’s pager was being used illegally and also tended to show defendant was in the business of selling cocaine. “This, in turn, was relevant circumstantial evidence that the contraband seized from [the vehicle] was possessed for sale.” (Id. at p. 390.)
Defendant relies on People v. Sundlee (1977) 70 Cal.App.3d 477 (Sundlee) in support of her argument that the voicemail message was inadmissible hearsay. The defendant in Sundlee was prosecuted for arson. Members of a surveillance team observed defendant’s truck and the driver acting suspiciously at the scene before and after the fire broke out, and their radio communications detailing their observations were tape-recorded. The tape recordings were played for the jury without objection. (Id. at pp. 481-482.) Although seven members of the surveillance team were called as witnesses at trial, the prosecutor used the recordings “as his evidentiary piece de resistance. The flesh-and-blood witnesses supplied only isolated pieces of supplemental testimony.” (Id. at p. 485.) In other words, the prosecutor relied on the tape recordings to prove the truth of the matters asserted in the records. There was nothing to indicate the recordings were presented for a nonhearsay purpose or were admissible under any of the various exceptions to the hearsay rule. As a result, the recordings would have been subject to exclusion as hearsay if defendant’s counsel had objected. The Court of Appeal reversed, because the recordings were inadmissible hearsay and the failure of the defendant’s counsel to object constituted ineffective assistance of counsel. (Ibid.)
Based on the purpose for which they were admitted, the tape recordings found to be inadmissible hearsay in Sundlee are not analogous to the voicemail message admitted by the trial court in this case. Here, the prosecution’s theory of the case was not that defendant was guilty of the assault on the victim as a direct perpetrator. During closing argument, the prosecutor said, “there’s been no evidence presented that the defendant actually struck [the victim].” Instead, the prosecution’s theory was that defendant was liable for the assault as an aider and abettor because she arranged for a group of thugs to appear at the home, serve the victim with a notice to vacate, and then intimidate and assault him so he would leave and not return. The statements made by the person who left the voicemail message indicated there were at least two people waiting outside the home near the time of the attack who wanted defendant to let them inside the home. However, the prosecutor did not seek admission of the content of the voicemail message to prove these facts, because there was an abundance of other evidence to show multiple individuals came to the home about 3:00 a.m. and obtained access to the inside of the home without forcible entry. There was also more than enough evidence to show the victim was actually assaulted and injured by multiple individuals who appeared inside his bedroom about 3:00 a.m. and then followed him outside the home to strike him repeatedly.
For a defendant to be found guilty as an aider and abettor, “ ‘the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.]’ ” (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) The jury in this case was instructed on the prosecution’s aiding and abetting theory of the case.
There was also an abundance of evidence to show defendant had a motive to plan and carry out an attack on the victim. She clearly wanted him to move out of the home, and was unable to legally obtain help in evicting him, because she was simply a cotenant who did not own the home. There was also other evidence of defendant’s role in the attack. For example, neighbors who witnessed the assault on the victim recalled hearing defendant telling the attackers to “beat his ass.” However, a police officer who interviewed defendant at the scene immediately after the attack testified she denied letting anyone into the home and said she did not know any of the attackers. As a result, defendant’s prior knowledge and involvement in a conspiracy with the attackers was an important issue in dispute.
The content of the voicemail message strongly suggested defendant had previously arranged and agreed to let two or more people into the home to forcibly evict, intimidate, and assault the victim. The prosecutor sought admission of the voicemail message as circumstantial evidence of defendant’s prior knowledge and agreement with the attackers. In other words, the voicemail message admitted in this case is analytically indistinguishable from the pager evidence found admissible for a nonhearsay purpose in Bullock. Because the prosecutor had a nonhearsay purpose for presenting the content of the voicemail message to the jury, it did not fall within the definition of “hearsay.” We therefore cannot conclude the trial court abused its discretion by admitting testimony about the content of the voicemail message for the nonhearsay purpose of showing defendant’s knowledge, intent, and involvement in the attack.
The prosecutor also sought admission of the voicemail message under an exception to the hearsay rule for statements by a coconspirator. In addition, the trial court alternatively ruled the voicemail message was admissible as an adoptive admission. However, it is unnecessary for us to decide these issues, because we have concluded the voicemail message did not constitute inadmissible hearsay.
We also reject defendant’s argument the testimony about the content of the voicemail message was admitted in violation of her constitutional right of confrontation, because the speaker was not identified and did not testify at trial. The confrontation clause in the United States Constitution does not bar the admission of an out-of-court statement for a nonhearsay purpose. (Tennessee v. Street (1985) 471 U.S. 409, 413-414.)
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., RICHLI J.