Opinion
F071188
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JORGE LOPEZ DIAZ, Defendant and Appellant.
Manuel J. Baglanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR045648A)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Manuel J. Baglanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant, Jorge Lopez Diaz, of two counts of robbery. (Pen. Code, § 211.) The two victims spoke only Spanish. Because the investigating officer, Christopher Anaya, was not fluent in Spanish, he used another member of the police force, Officer Gonzalez, to translate the victims' statements.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant argues that Anaya's testimony at the preliminary hearing and at trial regarding the statements made by the victims was inadmissible. According to appellant, those translated statements were hearsay. Appellant's trial counsel did not object to this testimony. Therefore, appellant asserts, his counsel was ineffective.
The objected to evidence was not hearsay. Thus, appellant's ineffective counsel claim has no merit. Accordingly, the judgment will be affirmed.
BACKGROUND
Appellant was one of three passengers in a car driving around late one night. As the car passed two men, Virgilio Lopez and Adan Ramirez, appellant asked the driver to stop. Appellant got out and demanded that Lopez and Ramirez give him money. Ramirez removed his wallet, but Lopez was unsure if Ramirez gave appellant money. Appellant searched Lopez, took his cell phone, and then left.
At the preliminary hearing, he stated his name was Virgillio Lopez Hernandez. However, at trial, he testified his name was Virgilio Lopez. --------
Officer Anaya was on routine patrol and heard someone repeatedly shouting "robada." Although not fluent in Spanish, Anaya knew that "robada" meant robbery. Anaya saw a man running towards a car and get in. The car then slowly drove off. Anaya alerted police dispatch and followed the car. Anaya activated his car's emergency lights and made a traffic stop. Just before the car stopped, Anaya saw the same man step out of the car and run toward a nearby alley.
Other police officers soon responded to Anaya's call for assistance. One officer chased after the man who had fled from the car and, after a struggle, took him into custody. This man was appellant. The officers did not find money or a cell phone on appellant or in the area.
At the scene, officers removed the driver and the other two passengers from the car and questioned them. One of the passengers, Xavier Garcia, stated that just before the theft from Ramirez and Lopez, appellant noticed a man walking along the street and told the driver, "Stop by this guy. I need to get some money." Appellant exited the vehicle, pointed what Garcia thought was a handgun at the man, and demanded money. The man handed appellant a small bag and then fled. When Anaya searched the car, he found a black toy gun under the front passenger seat.
Thereafter, the group drove around aimlessly until they came upon Ramirez and Lopez. Appellant told the driver to "stop by these guys." Appellant got out of the car without the gun and demanded money. Garcia said he did not really see what happened but, when appellant returned to the car, he was holding some items in his hand.
The other passenger, Victor Eugenio, told a similar story. Eugenio confirmed that appellant twice told the driver to pull over. On both occasions, appellant confronted the subjects and demanded money.
Anaya took the victims' statements at the scene. Not being fluent in Spanish, Anaya relied on a fellow officer, Officer Gonzalez, to translate both his questions and the answers given by Lopez and Ramirez.
At the preliminary hearing, Anaya and Lopez testified. Lopez stated that he and Ramirez were walking when a car stopped near them and a man got out and confronted them by asking for money. Lopez did not have any money. The man searched Lopez and took his cell phone from his pocket. Lopez stated he was "a little drunk" and did not see the person. Lopez further claimed that he never spoke to a police officer.
Anaya then testified about his investigation and recounted the translated statements from Lopez and Ramirez. Regarding the translation, Anaya stated that he knew Gonzalez to be fluent in Spanish. Anaya believed Gonzalez received a pay incentive for being bilingual. Anaya explained that to get that incentive, the city required that the officer pass a written and verbal language test. Anaya had used Gonzalez as a translator "numerous times" and had heard him speak in Spanish. Gonzalez had served in the police department longer than Anaya's almost eight years.
Anaya testified that both Lopez and Ramirez identified appellant as the person who robbed them. Lopez told Anaya that, as he and Ramirez were walking, a car stopped in front of them and appellant got out and demanded money. Lopez noticed that Ramirez pulled out his wallet and was holding it up as if to take money out of it. At that point, appellant reached over and tried to grab the wallet. When Ramirez would not let go, appellant struck Ramirez in the face and he fell to the ground. According to Lopez, appellant took money out of the wallet. Lopez stated that Ramirez had used his phone and still had it in his pocket. Appellant searched Ramirez's pockets and took Lopez's phone from Ramirez. Appellant then ran back to the car and got in.
Anaya also took Ramirez's statement. Ramirez told Anaya that a car stopped abruptly in front of them and appellant got out and demanded money. Ramirez pulled out his wallet and appellant immediately reached over and tried to grab it. Ramirez was trying to hold onto the wallet and appellant struck Ramirez in the face. Ramirez went down to the ground and appellant searched through his pockets. Appellant took $3 from Ramirez's wallet and the cell phone that was in Ramirez's pocket.
The trial court disregarded Lopez's in-court testimony finding that it was not credible. Based on Anaya's testimony, the trial court found sufficient evidence to hold appellant to answer for robbery of Ramirez (§ 211) and attempted robbery of Lopez (§§ 664/211). During trial, the court allowed the People to amend the information to allege robbery, rather than attempted robbery, as to Lopez.
A jury convicted appellant of two counts of robbery as charged in the amended information. The jury also found appellant guilty of two counts of resisting, delaying or obstructing a police officer. (§ 148, subd. (a)(1).) Thereafter, appellant admitted that he had committed two prior strikes and had two prior serious felony convictions as alleged in the information. (§ 667.) The court sentenced appellant to 17 years in prison.
DISCUSSION
Appellant argues that Anaya's testimony at the preliminary hearing relaying the translated statements he took from Lopez and Ramirez constituted inadmissible hearsay. Appellant asserts that the prejudice resulting from this testimony requires reversal of his robbery convictions.
Appellant acknowledges that hearsay statements are admissible at preliminary hearings for their truth, through the testimony of qualified law enforcement officers, to determine whether there exists probable cause to hold a defendant to answer at trial. (§ 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070.) Appellant also admits that Anaya, with almost eight years of law enforcement experience, was so qualified.
Appellant further accepts that his failure to challenge the preliminary hearing proceedings by moving to set aside the information pursuant to section 995 precludes him from claiming errors occurred in his preliminary examination on appeal. (§ 996; People v. Harris (1967) 67 Cal.2d 866, 870.) Thus, appellant concedes that, on appeal, he is limited to arguing that trial counsel's failure to object to the admission of the translated statements during the preliminary hearing deprived him of the effective assistance of counsel.
Finally, appellant recognizes that trial counsel's ineffective assistance at the preliminary examination normally has no significance so long as the ensuing trial is fair. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Nevertheless, appellant contends counsel's alleged ineffective assistance did affect the fairness of his trial. Appellant points to counsel's continued failure to object to the translated statements at trial and the trial court's use of the preliminary hearing testimony to allow the prosecution to amend the information to charge appellant with robbery, in place of attempted robbery, against Lopez.
Thus, the foundational issue is whether Anaya's testimony relaying the facts as told to him by the victims, through Gonzalez as the translator, was admissible at the preliminary hearing. If so, appellant's claims of error have no merit.
When a qualified investigating law enforcement officer presents a translated witness statement at a preliminary hearing pursuant to section 872, subdivision (b), the participation of a generally unbiased and adequately skilled translator does not interpose a layer of hearsay. Rather, the translator simply serves as a "'language conduit.'" Thus, the translated statement is the statement of the original speaker, not the translator. (Correa v. Superior Court (2002) 27 Cal.4th 444, 448 (Correa).)
The Correa court noted that, "the language-conduit theory calls for a case-by-case determination whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker" and adopted the measured approach taken by the Ninth Circuit Court of Appeals in U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522 (Nazemian). (Correa, supra, 27 Cal.4th at p. 457.) In Nazemian, the court reiterated the relevant factors that other courts have recognized "such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated." (Nazemian, supra, at p. 527.) Evidence of a translator's proficiency may be circumstantial. (Cf. Nazemian, supra, at p. 528.)
Here, while Gonzalez was a member of the police department, his employment is not evidence of a motive to mislead or distort. The fact that the government provides the interpreter is not dispositive. (Nazemian, supra, 948 F.2d at p. 527.) Appellant points out that other officers at the scene had to chase appellant and then engage in a physical struggle to subdue him. However, appellant's recalcitrance does not support finding Gonzalez was biased.
Anaya testified that Gonzalez was fluent in Spanish and that he had used Gonzalez numerous times as a translator and had heard him speak Spanish. Appellant points out that Anaya stated he believed Gonzalez received a pay incentive for being bilingual and believed such a bilingual officer must pass a written and verbal test. According to appellant, such speculation is not evidence that Gonzalez was qualified as an approved bilingual officer. Nevertheless, the fact that Gonzalez was regularly acting as a translator within the department supports finding him to be a qualified translator.
Moreover, other evidence is consistent with the statements as translated. The critical fact established by translated statements is the identity of appellant as the perpetrator. Lopez testified someone took his cell phone but stated he could not identify the thief. However, the translated statements were consistent with the statements from Garcia and Eugenio. Both of those witnesses identified appellant as the one who confronted the victims and demanded money. Thus, the evidence supports the conclusion that the translations were sufficiently unbiased and accurate to attribute the statements to Lopez and Ramirez.
Because defense counsel did not object to the introduction of the translated statements, the court did not rule on their admissibility. Nevertheless, under the circumstances, we conclude such an objection would have been overruled. Counsel does not render ineffective assistance by failing to make objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.) Accordingly, appellant did not receive ineffective assistance of counsel at the preliminary hearing.
Appellant further argues that defense counsel was ineffective at trial because he did not object, on hearsay grounds, to Anaya's testimony regarding Lopez's translated statement. However, Anaya testified following Lopez and offered the statements as being inconsistent with Lopez's trial testimony. Therefore, Lopez's inconsistent statements were not hearsay. (Evid. Code, § 1235.) Accordingly, any objection by defense counsel to this evidence would have been overruled.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
MEEHAN, J.