Opinion
C084525
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN LUCKY CUEVAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE016477)
A jury convicted defendant John Lucky Cuevas of assault with a deadly weapon, to wit, a motor vehicle (Pen. Code, § 245, subd. (a)(1)) and found a strike prior to be true. Defendant admitted a prior prison term enhancement.
The court denied defendant's motion for a new trial and his requests to strike his strike prior, and to reduce the offense to a misdemeanor and grant probation. The court sentenced defendant to state prison for an aggregate term of five years, that is, the low term of two years, doubled for the strike prior, plus one year for the prior prison term.
Defendant appeals. He contends the trial court prejudicially erred in admitting hearsay evidence against him. We agree and will reverse the judgment. In view of our disposition, we need not consider defendant's contention of prejudicial instructional error or his contention in a supplemental brief that the prior prison term should be stricken in light of Senate Bill No. 136.
FACTS AND PROCEDURAL HISTORY
On August 25, 2016, Vanessa Lopez called 911 and reported that defendant crashed his car into her car and that immediately thereafter defendant's parents and his brothers surrounded her car and smashed her car's windows. The dispatcher asked whether defendant hit her car intentionally and Lopez answered affirmatively.
About 35 minutes after being dispatched, officers arrived at the scene. Officer Conner Mills interviewed Lopez. According to Officer Mills, Lopez explained that defendant was her ex-boyfriend, that the silver car defendant had been driving was hers, and that she had been allowing defendant to use it. Lopez stated that she went to defendant's home in a cul-de-sac in order to get the license plate number of the silver car so she could have it towed away. Upon her arrival, defendant approached her with a tire iron he had retrieved from the silver car and smashed the windows of the black car she was driving. When she tried to drive away, defendant drove the silver car into the black car she was driving several times. She did not explain specifically how the collision occurred. Six people, including defendant, then surrounded her black car, hitting it, and yelling at her. Lopez was not injured. A female passenger was never interviewed, only her identifying information was obtained. After speaking with Adonis Williams, a neighbor, Officer Mills relayed the message to the officer in charge and defendant was then arrested.
At the preliminary hearing on October 17, 2016, Lopez testified that defendant was her boyfriend. She went to defendant's home to "hurt" him after she learned just hours before that defendant had been cheating on her with another woman. She planned to have the silver car she had loaned him towed away. As she was leaving the cul-de-sac, defendant was leaving in the silver car at the same time and they collided, only one time. She described the collision as an "accident" and called 911. The prosecutor asked Lopez if she gave a statement to the police at the scene. She responded affirmatively but the prosecutor did not ask her the content of her statement. The prosecutor then asked her if she had spoken with defendant after the incident that day and she denied that she had. On cross-examination, defense counsel asked her, "Do you recall telling the police that [defendant] hit your car?" She answered that she did, explaining that she wanted to hurt defendant any way she could and she was being very spiteful. She denied that defendant intentionally hit her car. She admitting telling police that defendant hit her car with a tire iron but denied that it ever happened. She said people, not defendant, threw rocks at her car, breaking her windows. She also admitted having gone to defendant's probation office earlier that day when he was there. She confronted him about his cheating, pushed him, took his phone, and, outside, slashed his tires using a knife. Later that day when she drove to his house to have the car towed, she noticed the tires had been replaced. She realized she could not have the car towed because defendant was present and standing next to it. She started to turn around to leave the area and defendant started to leave the area as well. They then accidentally collided.
The People's efforts to serve Lopez with a subpoena to testify at trial were unsuccessful. The prosecutor's attempts to have Lopez served were presented by witnesses who testified at trial in front of the jury. The trial court found that Lopez was unavailable to testify at trial and granted the People's request to present Lopez's testimony from the preliminary hearing. Lopez's prior testimony was read to the jury.
Between August 26, 2016 and December 4, 2016, Lopez visited defendant at the county jail 27 times and defendant called Lopez's number 106 times. Over defense objection, the prosecutor introduced at trial recorded jail conversations between defendant and Lopez in August and December 2016 and January 2017 as follows.
At 2:00 a.m. on August 26, 2016, just hours after the incident, defendant called Lopez from the jail. He demanded to know why she had him arrested. When she accused him of running into her car, he denied it. When she accused him of breaking her windows, he denied it. Lopez said it did not matter since it was his "fucking family dude." Lopez accused him over and over and he denied it all, "I didn't do nothing." Five minutes later, defendant called Lopez again from the jail. He demanded to know why she was lying about him. When she accused him repeatedly of ramming her car, he denied it repeatedly. When he asked her if she was going to stick to her story and testify, she responded that she was not going to court because there was enough evidence without her, noting a neighbor who had witnessed the incident, video recorded it, and reported it to police. Defendant again denied that he rammed her car when she accused him. Lopez said defendant went to jail because the neighbor had it on video. Defendant denied there was any video and that a witness had corroborated both sides. He told her he hoped she did not make it worse for him.
At 1:25 p.m. on August 26, 2016, defendant called Lopez from the jail and told her he was still in jail. Lopez was surprised he was still there and asked why he would "do that?" He denied doing anything to her, saying he was trying to leave and avoid her. She said she was trying to leave and he could have "fucking killed" her. He said he had just paid for new tires and said she could have "killed" him. She said he did it all to himself. He told her she could help make it go away. She denied she had any power and said she was not going to court anyway.
Later that afternoon, at 2:13 p.m., defendant called Lopez again. He told her he did not think he would go to jail for a "fucking car accident" and "nothing major." When she was incredulous that it was "nothing major," he again stated it was a "fucking car accident." She told him he was going fast when he hit her car. He denied hitting her car. He accused her of lying and making it worse for him. She responded that he left her with no car. Defendant accused her of showing up at his probation office, taking his phone, and slashing his tires. She denied slashing his tires.
At 8:43 p.m. on August 27, 2016, Lopez visited defendant at the jail. He told her he did not care how much prison time he received as long as she was in his life. Lopez promised to always be there for him. He wondered if they were strong enough to overcome it. She wanted to put everything behind them. He denied smashing her windows. She said, "I know you didn't." He said he did not think he was going to jail and stayed at the scene. She said she would have never called the police "if you guys wouldn't have did all that. You did bust[] in my windows, . . . . I didn't know what the fuck to expect." She thought she would be "jump[ed]." Defendant said she would never have been touched. Defendant did not want to be "in this situation" but he had no choice because the prosecutor and she had the "power over it." "Look, you want to go and push the issue on me, fuck, the D.A. wants to push the issue on me." She denied she was "pushin" the issue. He said, "Well, tell them that." She asked, "what am I gonna tell them?" He said, "I don't want to press charges. It was an accident." She said if she did, she would go to jail. Defendant said he was tired of being in jail and she said she was "so fuckin' sorry. You don't even know. But I wish it would have never fuckin' happened, dude." Defendant replied he was too but "we can't change nothin', man." She could not let him go. Defendant noted it had to be proven at trial, all witnesses had to appear including the victim, but with no victim there was no case. When she said she did not think she would show up at the scheduled hearing, he told her, "No, I don't know. Uh, that's what I'm saying. I don't know, . . . . But, it's basically at your feet . . . to keep it real. You know." She did not want to go to court at all. Defendant asked her if she gave a "bad statement," and she said she told what happened. Defendant wanted her to talk to his attorney but she did not know what to tell him. Defendant said, "I can't tell you what to tell" and "I can't persuade you . . . ." She said she already gave a statement and if she said something different, she would be charged. She did not know how much time it would mean for her.
At 6:53 p.m. on August 29, 2016, Lopez called defendant at the jail and denied slashing his tires. He said he had four slashed tires when he came out of the probation office. She denied doing it and claimed a couple of other people had flat tires as well. Defendant noted he had no phone, no car, had to walk a long way to the tire shop, paid for four new tires and still owed $160, and being in jail, his truck might be taken. Lopez denied doing anything but asked, "what did you expect?" Defendant said he thought she was going to slash his tires again when she showed up in the cul-de-sac. Lopez replied, "No. What the fuck? . . . I felt hella fucking played. . . . What the fuck?" She denied slashing his tires. He still accused her of doing so and she said, "I didn't fucking touch your car at all." He wanted to know how she knew he was at the probation office and she said he had told her when he also asked for "money to go see your bitch." She admitted she was already in the parking lot where she saw his parked car, saw him on the phone, and saw him walk into the probation office. She claimed there were two other people besides him who had slashed tires before she went inside. When asked if she saw who did it, she said she was inside. Defendant thought she did it and was back at his house to do it again. She said she would have never done "no shit like that, what you did." He denied doing anything.
The parties stipulated at trial that a search of police records revealed no reports of slashed tires where and when defendant had his appointment on August 25, 2016.
At 12:56 p.m. on August 31, 2016, Lopez called defendant at the jail and told him that she wanted to take it back because she did not want "nothing like that to even happen." He did not want her to take it back because she would be charged. Defendant planned to convince the jury it was an accident or "whatever it was." He thought it might not get that far if the prosecutor could not contact the victim or the victim would not cooperate. Defendant planned to get a copy of the police report with her statement. He said if she appeared before the jury, she could say whatever she wanted, like she did not want to press charges, and she could not be told what to say. She was planning to tell the district attorney that she did not want to press charges, that the entire incident was a mistake, people were mad at the moment, and that she did not have a good memory of the incident. She also wanted to change her phone number so the prosecutor's office could not call her.
At the preliminary hearing on October 17, 2016, as previously recounted, Lopez claimed the incident was an accident and defendant did not intentionally hit her. She was not asked about the recorded conversations with defendant at jail up to that point.
At 1:26 p.m. on December 25, 2016, defendant called Lopez from the jail. Defendant complained that she had abandoned him and not visited. Lopez stated that the prosecutor's office had been trying to contact her, calling her at her job, at her grandmother's home, and other places.
At 12:37 p.m. on January 6, 2017, defendant called Lopez. Lopez complained that the prosecutor's office had visited the homes of family members, trying to contact her. Defendant replied that was "crazy" but he would let her "do [her] thing" and "tell 'em be strong." She said the "office where I live isn't open today, so it's good." He replied, "Oh okay, okay. Well, they can't go all the way to Reno for you. You're way over there." She replied, "I know. I know. It's a whole different county [sic]."
Adonis Williams, the neighbor Lopez had referred to in one of her recorded conversations with defendant, testified at trial under subpoena. Williams lived on the cul-de-sac. He heard and saw a black car being driven by Lopez. The car was turning around in the cul-de-sac. Williams turned away and heard a collision. Williams then saw that two cars had crashed. He saw a white or grey car (silver), head-on with the black car, back up, and ram the black car. Williams thought it was intentional. Williams then called the police. Williams said he did not say anything to the officer who arrived on the scene. He explained he did not want to be seen as a snitch. He was later approached by an officer who got his phone number from 911. Williams spoke to Lopez at the scene. Williams overheard an officer say at the scene that the driver of the black car, Lopez, was going to jail. Williams did not think it was right and decided to say something. Williams denied having video recorded the incident as Lopez had told defendant in one of their jail conversations.
On cross-examination, Williams admitted that he was on the porch doing laundry and did not see the initial collision. He also admitted that he never said to 911 that the silver car "rammed" the black car and instead had said that the car had "pushed" the other. He admitted about a month before the collision, he had become very angry and engaged in a physical altercation with defendant's father who was considerably smaller than Williams. Williams put defendant's father in a headlock, lifting him off his feet. Williams also admitted having shoved a prior girlfriend who fell and was injured. When Williams spoke with Lopez at the scene, Lopez was bad-mouthing defendant and Williams believed her. Williams claimed there was criminal activity around the clock across the street that he did not like and thought there would be gunfire after the collision. Williams admitted to having previously seen defendant in the silver car while being parked across the street in front of Williams's front door. Williams had testified on direct that he had no idea who was in it when it collided with Lopez.
Law enforcement took no photographs of the damage to the two cars, only defendant's injuries. Defendant's driver and front passenger airbags had deployed but not Lopez's. The two cars were separated, across from one another in the cul-de-sac, and both had front end damage. Lopez's car had shattered windows. There was a tire iron on the passenger seat of defendant's car.
The trial court allowed the prosecution to present one photograph of Lopez's black car. The photograph was taken six weeks after the collision. The photo depicted a tow truck with Lopez's car that had been stripped after sitting on the side of some road. The trial court allowed the photograph because it showed the front end damage to Lopez's car. --------
Mitchell Lopez (no relation to Vanessa Lopez) testified that on August 25, 2016, he assisted defendant in obtaining replacement tires for the silver car after all four tires had been slashed earlier in the day. Defendant insisted on paying Mitchell. Mitchell followed defendant to his home and went inside with defendant. Defendant did not have any money at home so he left to go to a bank or somewhere to obtain money. Shortly after defendant went out the door, Mitchell heard a "smash." Then he heard a "car burning off, shoving somewhere, and [defendant's] parents beating the heck out of the car." On cross-examination, Mitchell testified he heard only one "smash[]." He did not remember which car was pushing the other. Both cars were "barely moving." Defendant was sitting in his car, "disgusted."
DISCUSSION
The confrontation clause of the Sixth Amendment to the United States Constitution guarantees the right to confront and cross-examine witnesses who testify against a criminal defendant. (Crawford v. Washington (2004) 541 U.S. 36, 42 [158 L.Ed.2d 177, 187] (Crawford).) Under the Sixth Amendment, "testimonial evidence" is inadmissible unless the witness is unavailable and the defendant had "a prior opportunity for cross-examination." (Id. at p. 68.) Crawford held that the term "testimonial," for purposes of the confrontation clause, "applies . . . to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations" (ibid.) and that a victim's statement "knowingly given in response to structured police questioning" qualified as "testimonial" (id. at p. 53, fn. 4).
"A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. [Citations.] This right, however, is not absolute. The high court recently reaffirmed the long-standing exception that '[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.' [Citations.] Evidence Code section 1291 codifies this traditional exception. [Citation.] When the requirements of Evidence Code section 1291 are met, 'admitting former testimony in evidence does not violate a defendant's right of confrontation under the federal Constitution. [Citations.]' [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 340.)
At trial, the prosecutor introduced Lopez's statements to the 911 dispatcher, which implicated defendant. Her statements were not inadmissible hearsay under Crawford since there was an ongoing emergency or threat. (Davis v. Washington (2006) 547 U.S. 813, 822 [165 L.Ed.2d 224, 237].) Her statements to the dispatcher were admitted as spontaneous statements, an exception to the hearsay rule (Evid. Code, § 1240; People v. Thomas (2011) 51 Cal.4th 449, 495-496), and defendant does not contend otherwise.
At trial, the prosecutor introduced Lopez's preliminary hearing testimony after the trial court found Lopez to be unavailable as a witness for trial. (Evid. Code, § 240, subd. (a)(5); People v. Wilson, supra, 36 Cal.4th at p. 341.) It is undisputed that defendant had an opportunity to cross-examine Lopez at the preliminary hearing and did so. Defendant does not contend the trial court erred in admitting Lopez's preliminary hearing testimony at trial. At the preliminary hearing, Lopez recanted and claimed the incident was an accident.
At trial, the prosecutor introduced Lopez's statement to the officer at the scene as previously recounted through the testimony of Officer Mills. At the preliminary hearing, the prosecutor asked Lopez if she gave a statement to the police at the scene but did not ask about the content of her statement. Her statements to the officer were testimonial but defendant had the opportunity and did question her about them at the preliminary hearing when she recanted, denying that defendant had hit her car intentionally with his car and denying that he had used a tire iron to break her car windows. Evidence Code section 1294 permits the statement of an unavailable witness to be introduced as evidence in court if the statement was previously introduced at a hearing or trial as a prior inconsistent statement of the witness. Evidence Code section 1294 was aimed at the situation when a witness recants her previous out-of-court statements to the police. Since the evidence was introduced into evidence at the preliminary hearing, it was admissible under Evidence Code section 1294. (People v. Martinez (2003) 113 Cal.App.4th 400, 409.)
On appeal, defendant does not challenge Lopez's statements to 911, to the officer at the scene, or at the preliminary hearing. Defendant renews his challenge to the admission of the recorded jail conversations between defendant and Lopez. He argues the conversations were inadmissible hearsay and that the exceptions cited by the prosecutor and the court did not apply. Further, he claims no other exception applied. We agree.
In her in limine motion, the prosecutor sought to admit defendant's statements in the jail recordings under Evidence Code section 1220. Evidence Code section 1220 permits introduction of admissions by a party. Evidence Code section 1221 permits introduction of adoptive admissions, that is, if defendant adopted any of Lopez's statements by his words or conduct. " 'If a person is accused of having committed a crime, under circumstances which fairly afford him [or her] an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he [or she] was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he [or she] fails to speak, or he [or she] makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.' [Citations.] . . . 'When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His [or her] silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
Here, defendant's responses to Lopez's accusations during the recorded jail conversations were direct denials of her accusations, not admissions and not evasive responses. The trial court erred in concluding otherwise.
The prosecutor argued Lopez's statements in the jail recordings were prior inconsistent statements with her preliminary hearing testimony and consistent with her 911 call and statement to the police at the scene. Evidence Code section 1235 permits a witness's prior inconsistent statement to be used as substantive evidence but applies only to a witness at trial, not to a hearsay declarant. (People v. Williams (1976) 16 Cal.3d 663, 667-669.) Evidence Code section 1236 permits a witness's prior consistent statement to be used as substantive evidence but applies only to a witness at trial, not to a hearsay declarant. (People v. Hitchings (1997) 59 Cal.App.4th 915, 921-922.)
The trial court erred in concluding that Lopez's statements in the jail recordings were admissible under Evidence Code section 356. Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
Here, the prosecutor was the proponent of both defendant's statements as admissions and Lopez's statements as consistent statements. The rule of completeness did not apply. (People v. Guerra (2006) 37 Cal.4th 1067, 1121-1122, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
On appeal, the People do not attempt to support the prosecutor's and court's ruling on the admissibility of the recorded jail conversations. Instead, the People claim Lopez's statements were admissible pursuant to Evidence Code section 1202. Evidence Code section 1202 allows statements of a hearsay declarant to be admitted to attack the declarant's credibility but are not admissible for their truth if the declarant does not testify at trial. (People v. Blacksher (2011) 52 Cal.4th 769, 808.) Here, the prosecutor was successful in her argument that Lopez's statements were admissible for their truth, not for impeachment, and successfully opposed an instruction that would have instructed the jury that Lopez's jail statements were not admitted for their truth. Thus, Evidence Code section 1202 was not applicable.
Under Evidence Code section 1294, Lopez's statements in her recorded jail conversations would have been admissible if the prosecutor had introduced such statements at the preliminary hearing but the prosecutor failed to do so. At the preliminary hearing, the prosecutor asked Lopez whether she had spoken with defendant the day of the incident and she denied that she had. The prosecutor then failed to ask Lopez about her recorded jail conversations with defendant that had occurred up to that date. Evidence Code section 1294 does not apply. Nor does it apply to the remaining jail conversations. Thus, the inherent unreliability attached to Lopez's out-of-court statements with defendant at the jail still existed and were inadmissible at trial. The trial court abused its discretion in admitting the jail recordings of the conversations between defendant and Lopez.
We cannot say that the error in admitting the evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Garcia (2008) 168 Cal.App.4th 261, 291-292.) Lopez had a motive to lie about who was responsible for the car crash. She had just learned that defendant was cheating on her with another woman. She sought out defendant. At the preliminary hearing, she admitted she slashed the tires of defendant's car after she had pushed defendant at his probation office and took his phone. Later the same day, she claimed she went to defendant's home to get the license plate number of a car she owned. According to her preliminary hearing testimony, she went to defendant's home to "hurt" him. Her statements to dispatch and to the officer at the scene that defendant intentionally hit her occurred within a short time of the collision and on the same day she had learned defendant was cheating on her. Within hours of the incident, Lopez told defendant there was enough evidence against him without her testimony. She did not intend to testify against defendant from the beginning. She had "hurt" him by getting him arrested and charged. But two months later, she recanted at the preliminary hearing, saying it was an accident, and then she skipped town to avoid testifying at trial and being arrested herself for giving false statements to law enforcement, vandalism (slashing defendant's tires), and theft of defendant's cell phone.
The evidence against defendant, other than Lopez's self-serving statements, included the testimony of a neighbor who had been in a dispute and a physical altercation with defendant's father. Further, the neighbor admitted that he did not see the initial collision and that at the scene, he had spoken with Lopez who was bad-mouthing defendant. When the neighbor heard officers talking about arresting Lopez, the neighbor then decided to speak. Although the neighbor testified defendant had "rammed" Lopez's car (same word Lopez had used in her jail conversations and defendant denied), the neighbor told the 911 dispatcher that the silver car (defendant's car in which the airbags had deployed) "pushed" the other. The neighbor also reported to the 911 dispatcher that there was shooting but there was no evidence that any shooting had occurred when the two cars collided or even thereafter. The neighbor denied knowing who was in the silver car but admitted on cross-examination that he knew defendant had driven that particular car. The neighbor also complained about the alleged round-the-clock criminal activity across the street where defendant lived.
Mitchell Lopez said defendant had left his home to get some money to pay him for the tires and Mitchell heard, but did not see, the collision. Mitchell saw one car pushing the other car but neither was moving much. When Mitchell saw defendant, he looked disgusted.
The damage to the two cars was never photographed at the scene and both had front end damage. The airbags deployed in defendant's car. The silver car and the black car were separated across the cul-de-sac after the incident. The officers planned to arrest Lopez until the neighbor spoke up.
Lopez's jail conversations with defendant were prejudicial because the jury heard Lopez accuse defendant repeatedly of "ramming" her car. While she reported to the dispatcher and to the officer at the scene that defendant intentionally hit her, such statements occurred shortly after she arrived in the cul-de-sac to "hurt" defendant for cheating on her. Her jail conversations also occurred shortly after the collision and by her language and tone, she was still angry at defendant for cheating on her. She told defendant that she had no intention of testifying in court. Her statements at the preliminary hearing two months after the collision were given under oath and she testified it was an accident. We conclude it is reasonably probable that the exclusion of the recorded jail conversations would have resulted in a different outcome at trial. We reverse. Our decision to reverse for trial court evidentiary error renders it unnecessary to discuss defendant's challenge to the trial court's instructional error.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further proceedings.
/s/_________
BLEASE, J. We concur: /s/_________
RAYE, P. J. /s/_________
HOCH, J.