Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF134946, RIF149416 Jean P. Leonard, Judge..
James R. Bostwick, Jr., 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, Steve Oetting and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Tizoc Garcia and another inmate were in a holding cell at the Riverside Hall of Justice with a third inmate, Brent VanHolland. While in the holding cell, defendant and the other inmate were able to slip out of their waist chains. They used the chains to hit VanHolland in the head and face. Defendant was convicted of assault with a deadly weapon.
Defendant’s sole claim on appeal is that the trial court erred by allowing in the statement made by VanHolland to officers on the date of the incident as a prior inconsistent statement when he testified at trial that he could not remember being beaten.
We affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of assault with a deadly weapon, to wit, chains. (Pen. Code, § 245, subd. (a)(1).) In a bifurcated proceeding, defendant waived his right to a jury trial and admitted he had suffered one prior serious or violent felony conviction (§§ 667, subds. (c), (e)(1) and 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
Defendant was also charged (in a consolidated information for a separate incident) with battery upon a correctional officer (Pen. Code, § 243.1) and misdemeanor assault on a correctional officer (Pen. Code, § 241.1). Prior to trial, defendant pleaded guilty to those offenses.
All further statutory references are to the Penal Code unless otherwise indicated.
Subsequent to the conviction in this case, but prior to sentencing, defendant was charged in two other cases with destruction of jail property (§ 4600, subd. (a)) and possession of a syringe in jail (§ 4573.6). He pled guilty to the charges and they were ordered to run concurrent to the sentence in the instant case.
Defendant was sentenced to the second-strike sentence of six years on the assault with a deadly weapon offense, plus one year four months for the battery on a correctional officer offense, plus one year for the prior prison term enhancement. Defendant was sentenced to a total sentence of eight years four months in state prison.
II
FACTUAL BACKGROUND
Riverside County Sheriff’s Department Correctional Deputy Sheila Goodwin worked at the Robert Presley Detention Center. The detention center was connected to the Hall of Justice courthouse in Riverside, and inmates could be walked underground to the courthouse for appearances. While awaiting appearances, inmates are kept in holding cells underneath the courthouse. Deputy Goodwin explained that inmates awaiting transport are placed in waist chains, which consist of a chain around the waist of the inmate with two attached handcuffs and a padlock in the back. Deputy Goodwin indicated that if the waist chain was not put on tightly enough, inmates could slip the waist chains over their heads or down over their knees. She had seen this happen.
On January 25, 2007, Deputy Goodwin was in charge of the inmates being kept in the holding cells underneath the courthouse. Around 12:30 p.m., Deputy Goodwin walked down the hall and was checking all of the cells. When she reached cell nine, she observed that two inmates, defendant and Andrew Felix, were pulling their waist chains from their knees back up to their waist. Brent VanHolland was also being held in the cell.
Felix pleaded guilty prior to defendant’s trial.
Defendant said to Deputy Goodwin, “[E]verything is okay. Nothing to worry about, everything is okay.” Deputy Goodwin opened the cell door to check. She observed VanHolland lying in a fetal position by the door to the cell. He had three cuts over his one eye and a bruise on the other. VanHolland was bleeding from the cuts. There were drops of blood in the cell. VanHolland also had a cut on the back of his head.
Only defendant, VanHolland, and Felix were in the cell when Deputy Goodwin looked in. After removing VanHolland from the cell, Deputy Goodwin tightened defendant’s and Felix’s waist chains. Neither Felix nor defendant had any injuries, and there was no blood on the chains. Based on Deputy Goodwin’s training and experience, she believed the injuries to VanHolland were consistent with being hit with the padlock on the waist chains. Deputy Goodwin explained that even with the handcuffs still attached, there was a chain that could swing around. The padlock was a “very lethal weapon.” VanHolland was taken to the hospital.
VanHolland was subpoenaed to testify; he stated that he was being forced to testify. VanHolland did not remember that he was in custody on January 25, he did not recall being beaten up, and he did not recall talking to any officers after the beating.
Riverside County Sheriff’s Deputy Joseph Staggs was transporting inmates from the jail to court on January 25, 2007. Deputy Staggs indicated it was common for inmates to slip out of their waist chains because they expand their stomachs when the chains are put on.
Deputy Goodwin called Deputy Staggs to cell nine about 12:30 p.m. When he arrived, VanHolland was sitting outside the cell on a bench. Deputy Staggs observed that VanHolland had two cuts above his left eye, three bumps on the left side of his face, and a large bump on the back of his head. The injuries appeared fresh because they were still bleeding, and there was blood on his clothes. Defendant and Felix had no injuries.
Deputy Staggs spoke with VanHolland, who appeared somewhat incoherent but very calm. VanHolland told Deputy Staggs that he had been inside the cell lying on the bench. Two inmates approached him and told him that he was in their seat. When he started to get up, “they” attacked him, hitting him in the chest and face with their fists. VanHolland told Deputy Staggs that they took off their waist chains and started swinging them over their heads. They struck him in the face and chest several times with the handles of the padlocks. VanHolland told Deputy Staggs he wanted to prosecute the inmates.
Deputy Staggs transported VanHolland to the jail’s nurse. The nurse recommended that VanHolland be taken to the hospital due to the extent of his injuries. Deputy Staggs indicated that VanHolland’s injuries were consistent with what he said had happened. Deputy Staggs also explained that he did not believe that the bump on back of VanHolland’s head could have been caused by a fist.
Defendant presented no evidence.
III
ADMISSION OF VANHOLLAND’S PRETRIAL STATEMENT
Defendant contends that it was prejudicial error to admit VanHolland’s statement to Deputy Staggs, as he had an innocent failure to recollect the incident at trial, and therefore the statement was not admissible as a prior inconsistent statement.
A. Additional Background
Prior to trial, the People filed a written trial brief in which they sought to admit VanHolland’s prior statements under Evidence Code section 1235 if he testified at trial inconsistently with the statement he made to police on the day of the incident. The trial court tentatively ruled that it would admit the statement dependent upon a proper foundation being laid.
At trial, VanHolland testified that he did not recall the picture being taken of him showing cuts and blood on his face, he could not remember how he received the injuries, and he was “not sure” if he had been hit while in custody before. VanHolland could not remember being in a holding cell on January 25; he had been in many holding cells. VanHolland could not identify defendant or a photograph of Felix. VanHolland stated that if he recognized defendant, he would say so, since he was under oath, but he also admitted he did not want to testify and was being forced to be present in court. VanHolland said he did not recall speaking with Deputy Staggs.
The People attempted to bring in the statements that were made to Deputy Staggs through VanHolland by refreshing his recollection with the statements. VanHolland did not recall making any statement to Deputy Staggs and testified that reviewing the statement would not refresh his recollection. A sidebar conference was held.
Defense counsel argued that, since VanHolland indicated he did not recall talking to Deputy Staggs, the People were improperly trying to refresh his recollection by bringing in his statement to Deputy Staggs. The prosecutor responded, “I’m laying the foundation for the prior inconsistent statement, but then I will call the deputy to say that he, in fact, did interview him at that cell and the people that were in the cell and what he told the deputy that happened that day.” Defense counsel objected that the People could not use impeaching prior testimony in an attempt to refresh recollection. Defense counsel stated, “And I don’t think that is his failure of recollection, is it genuine or is it not? If it’s not genuine, then it’s inconsistent. If it’s genuine, and it could very well be because, let’s face it, he had his bell rung that day, but he might not remember those things. If he simply does not remember, then you can’t impeach him because his failure of recollection is not inconsistent with his prior statements.” The People argued that they could bring in the statements even if it was a mere failure to recollect the interview; the statements were still inconsistent with VanHolland’s testimony in court. Defense counsel disagreed and objected on the grounds of hearsay.
The trial court felt that the People had to ask more about VanHolland’s recollection of the interview. It agreed that the People could not get into the details of the interview with VanHolland if he said he did not recall the interview at all. The trial court felt more of a foundation needed to be laid for what VanHolland remembered. Defense counsel argued that the People were stuck with VanHolland not remembering anything, and they could not get in inadmissible hearsay.
The People then argued that they were laying the foundation for Deputy Staggs to testify about the statements in the interview. The trial court overruled the objection subject to the People calling a witness to substantiate what was said in the interview. Defense counsel reiterated that they were not inconsistent statements.
VanHolland then testified that he had no recollection of being in a holding cell and being found in a fetal position. He recalled he went to a plastic surgeon for an injury to his cheek, but he did not recall how he sustained the injury. He did not remember telling Deputy Staggs that he was lying on a bench when two other inmates told him to get up, and as he started to get up, they beat him with their fists in the face and used their waist chains to beat him. VanHolland did not recall that he wanted the two inmates prosecuted.
Deputy Staggs was then called and testified regarding the statement that defendant made prior to trial, as set forth in the part II, ante.
B. Analysis
Evidence Code section 1235 provides that “[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770.” Evidence Code section 770 provides, “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
“The ‘fundamental requirement’ of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. [Citation.] Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper.” (People v. Johnson (1992) 3 Cal.4th 1183, 1220.) “The trial court’s evidentiary rulings are reviewed for abuse of discretion. [Citations.]” (People v. Geier (2007) 41 Cal.4th 555, 586.)
Here, the trial court did not make a specific finding on the record that VanHolland was being deliberatively evasive in his trial testimony. The People contend that the trial court implicitly found that VanHolland was deliberatively evasive in his testimony. Even if the trial court does not make a specific finding that the witness is being evasive or untruthful, if the record supports such finding, it can be implied from the ruling admitting the statement. (People v. Gunder (2007) 151 Cal.App.4th 412, 418-419, called into doubt on other grounds in People v. Moore (2011) 51 Cal.4th 386, 411.)
It is highly improbable that VanHolland would recall being hit in the head with chains immediately after the event but then have a lack of recollection at the trial. (See People v. Gunder, supra, 151 Cal.App.4th at pp. 418-419.)His excuse that he had been in many jail cells with other inmates was not plausible. There was no evidence that during those other occasions when he was in a holding cell he was hit by two other inmates with waist chains. VanHolland admitted that he did not want to testify and was being forced to do so. Further, VanHolland indicated he recalled seeing a plastic surgeon but could not recall how he received his injuries. The trial court could reasonably infer that VanHolland’s failure to recollect the incident was feigned.
Defendant claims that the trial court did not admit the prior inconsistent statement because VanHolland was deliberatively evasive in his trial testimony but rather accepted the People’s argument that if VanHolland simply did not remember the event, the prior statement could be admitted as inconsistent. We agree with defendant that case law supports that in order to be admitted as an inconsistent statement, the witness must be deliberatively evasive at trial. (People v. Johnson, supra, 3 Cal.4th at p. 1220.) However, the record does not conclusively establish that the trial court based its ruling on the People’s argument, and the record supports that VanHolland was being evasive in his trial testimony.
Even if VanHolland did actually fail to remember the events of that day, and his prior statements to Deputy Staggs were improperly admitted, any conceivable error that occurred was harmless based on the other evidence presented to the jury. “[S]tate law error in admitting evidence is subject to the traditional Watson[] test” and will be deemed prejudicial only where “it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]” (People v. Partida (2005) 37 Cal.4th 428, 439.)
People v. Watson (1956) 46 Cal.2d 818, 836.
Defendant argues that if the evidence of VanHolland’s statement had not been admitted, the jury would not have found beyond a reasonable doubt that he hit VanHolland with the chains and would have found him only guilty of simple assault. Defendant also argues VanHolland’s statement was the only evidence that he participated in the beating.
Here, there was strong circumstantial evidence that defendant participated in the beating of VanHolland. Deputy Goodwin observed both defendant and Felix pulling up their waist chains when she approached their cell. Although VanHolland was lying on the floor in the fetal position, defendant told Deputy Goodwin that everything in the cell was fine. Additionally, the jury was instructed that they could find that even if defendant did not actually beat VanHolland, he could be found to have aided and abetted Felix. Either theory was supported by strong evidence even without VanHolland’s statement.
Moreover, there was evidence presented that the injuries sustained by VanHolland were from waist chains. Again, defendant was seen pulling up his waist chains. Based on Deputy Goodwin’s training and experience, the injuries to VanHolland were consistent with being hit with the padlock on the waist chain. Deputy Staggs also testified that the bump on the back of VanHolland’s head was not consistent with being hit by a fist.
Based on the foregoing, even without VanHolland’s statement to Deputy Staggs after the incident, the jury could reasonably conclude that defendant used his waist chains to beat VanHolland.
IV
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., MILLER J.