Opinion
F039998.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. BRYAN LEROY GARCIA, Defendant and Appellant.
Oliver J. Northup, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Patrick J. Whalen and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Bryan Garcia of receiving stolen property (Pen. Code, § 496, subd. (a); count 2), making a criminal threat (Pen. Code, § 422; count 3) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); count 4). In a separate proceeding, appellant admitted an allegation that he had suffered a "strike." The court imposed a prison term of seven years four months, consisting of the three-year upper term on count 2, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)) for a total of six years, and, on count 3, one year four months, representing one-third of the midterm for that offense, doubled pursuant to the three strikes law. The court imposed a concurrent one-year term on
We use the term "strike" to describe a prior felony conviction that subjects a defendant to the increased punishment specified in the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12).
count 4.
On appeal, appellant challenges only his conviction on count 3. He argues that defense counsel, by requesting that a certain witness not be excused, insured the admissibility of certain otherwise inadmissible incriminating evidence, thereby depriving appellant of his right to the effective assistance of counsel. He also argues that counsel was ineffective in failing to object to certain evidence. We will affirm.
FACTS
On January 17, 2000, appellant, Terry Pierce and another man, using appellants pickup truck, transported a large stainless steel tank to J & H Metal, a scrap metal business in Hanford. An employee of J & H Metal paid Pierce $ 48 for the tank.
References to dates of events are to dates in 2000.
William Winterberg owned the tank. It was worth approximately $ 1,500. Winterberg kept the tank on a piece of property in the Hanford area owned by his father, and he discovered it was missing on February 9. He had not given permission to anybody to sell it.
Kings County Sheriffs Deputy John Daulton, investigating the theft of the tank, obtained from J & H Metal the license number of the truck in which the tank had been transported to the scrap metal yard. On February 28, Deputy Daulton went to the home of appellants brother in Armona where appellant was staying and questioned appellant concerning the metal tank. While the deputy was questioning appellant, he noticed, in plain sight, utensils used for the ingestion of methamphetamine. Deputy Daulton administered a series of field sobriety tests, and on the basis of those tests formed the opinion that appellant was under the influence of a controlled substance. Deputy Daulton took appellant into custody. Appellant was booked into the county jail late in the morning of February 28.
Later that day, from jail, appellant placed a telephone call to his estranged wife, Katherine Garcia. He blamed Katherine for giving the police the address of where he was staying, and, Katherine testified, he told her he would "break her fuckin neck." Katherine further testified that when appellant made this threat she did not believe he would carry it out and that at no time was she afraid appellant would hurt her when he got out of jail. Katherine admitted that she asked Deputy Daulton about obtaining a restraining order against appellant, but, she testified she did so because she was "upset" and "just didnt want [appellant] hanging around [her]."
For reasons of clarity, with no disrespect intended, we refer to Katherine Garcia by her first name.
Deputy Daulton testified to the following: He met with Katherine for the first time at her home on February 25, at which time she told him she was "deathly afraid" of appellant; appellant had been "abusive in the past"; he has "a drug problem"; and he was arrested in 1992 following an incident in which he physically abused Katherine. On February 28, after appellant had been arrested, Katherine called Deputy Daultons pager number, and he returned her call. During that telephone conversation, Katherine told the deputy appellant had threatened to break her neck; she believed that if appellant got out of jail he was going to hurt her; and she was scared.
DISCUSSION
Counsels Request that Katherine Not be Excused
At the close of Katherines testimony, the prosecutor indicated to the court that he did not object to Katherine being excused. At that point, defense counsel told the court, "Id like her subject to recall just in case." As we explain below, appellant argues that defense counsel provided constitutionally deficient representation because by asking that Katherine be subject to recall, he insured the admissibility of otherwise inadmissible incriminating evidence, viz., Deputy Daultons testimony that Katherine told him on February 28th that she was scared that when appellant got out of jail he would hurt her. The following matters are undisputed: Deputy Daultons testimony regarding Katherines statements that she feared appellant was extremely damaging to appellant in that, given Katherines denials that appellants threat caused her to fear for her safety, it was the only evidence of the "sustained fear" element of Penal Code section 422; this incriminating evidence was hearsay (Evid. Code, § 1200, subd. (a)), and therefore, under the hearsay rule (§ 1200), inadmissible "except as provided by law" (& sect; 1200, subd. (b)); and, although hearsay, the statements in question constituted what are commonly called prior inconsistent statements, i.e., statements "inconsistent with [a witnesss] testimony," and are therefore not made inadmissible by the hearsay rule provided they are "offered in compliance with Section 770." (§ 1235).
Penal Code section 422 provides, in relevant part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (Emphasis added.)
Except as otherwise indicated, all further statutory references are to the 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: [P] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [P]
(b) The witness has not been excused from giving further testimony in the action."
Thus, a prior inconsistent statement is admissible notwithstanding the hearsay rule if one of two foundational requirements is met. (§ 770.) Appellant contends the foundational requirement of section 770, subdivision (a) was not satisfied, and therefore Katherines prior inconsistent statements would have been inadmissible had not defense counsel asked that Katherine not be excused, thereby establishing the foundational factor set forth in subdivision (b) of section 770. Defense counsels action constituted constitutionally deficient representation, appellant argues, because "there can be no satisfactory explanation for counsels risking the admission of otherwise inadmissible incriminating evidence . . . ."
The crux of this claim is appellants contention that the foundational requirement of section 770, subdivision (a) was not met, i.e., the claim that Katherine was not given an "opportunity [while testifying] to explain or deny" the prior inconsistent statements later introduced by the People. (§ 770, subd. (a).) In this regard, appellant argues that "on direct examination [by the prosecutor] Katherine was never asked whether or not she made a specific statement to Deputy Daulton on a specific occasion regarding either her belief as to whether the threat would be carried out or her fear, two fundamental elements of the crime proscribed by Penal Code section 422." Appellant acknowledges that Katherine was asked several hypothetical questions as to whether Deputy Daulton would be lying or mistaken if he were to testify that Katherine made certain statements to him, but, he argues, "she was never asked about a specific statement she could explain or deny." Further, appellant argues, there was evidence that Katherine spoke to the deputy on February 25th, before appellants threat, and on February 28th, after he had threatened her, but "the questions put to Katherine never clarified whether she was being asked about a conversation before or after Mr. Garcias threat." Appellant contends this circumstance was fatal to the foundational showing under section 770, subdivision (a) because, he asserts, without citation to authority, "where it is undisputed that several conversations took place between the witness sought to be impeached and the witness called to testify as to a prior inconsistent statement, the witness sought to be impeached has not been given an opportunity to explain or deny the statement if the particular conversation is not identified."
For example, the prosecutor asked Katherine, "If Deputy Daulton were to say Katherine Garcia told me she was afraid of the defendant, would that statement be a mistake or misunderstanding or a lie?"
We need not decide whether the prosecutors hypothetical questions provided Katherine with an opportunity to explain or deny her prior inconsistent statements. A "realistic opportunity . . . must be afforded the witness to explain or deny the statements under section 770 . . . ." (People v. Garcia (1990) 224 Cal. App. 3d 297, 304, 273 Cal. Rptr. 666.) Such an opportunity "requires reference to more than one of the following, 1) the people involved in the conversation, 2) its time and place, or 3) the specific statements that were made during it." (Ibid.) The prosecutor directly asked Katherine, "Now, did you express to Deputy Daulton at any time that you were afraid that the defendant was going to get out of jail and harm you?" This question, to which Katherine answered, "No," refers to the first and third of the factors set forth above. Thus, the prosecution established under section 770, subdivision (a) the foundational element for the admission of Katherines statements, and therefore, for purposes of the admissibility of those statements under section 1235, it is of no moment that counsel requested that Katherine not be excused. It necessarily follows that counsels request could not constitute ineffective assistance of counsel. (People v. Hester (2000) 22 Cal.4th 290, 296, 992 P.2d 569 ["to establish ineffective assistance of counsel, a defendant must show: (1) counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient performance was prejudicial"].)
Failure to Make Evidentiary Objections
As indicated above, Deputy Daulton testified he spoke to Katherine for the first time on February 25th at her home, prior to appellants arrest, at which time Katherine told the deputy she was "deathly afraid" of appellant; appellant had a "drug problem"; and he had physically abused her in the past, including one occasion in 1993 for which he was arrested. Defense counsel failed to object to or move to strike this testimony. This failure, appellant contends, constituted constitutionally ineffective assistance of counsel. This argument is based, in turn, on the claim that the statements in question were hearsay not made admissible under section 1235 because they were consistent with Katherines testimony. (People v. Morgan (1978) 87 Cal. App. 3d 59, 75-76, 150 Cal. Rptr. 712, disapproved on another ground in People v. Kimble (1981) 44 Cal.3d 480, 497-498, 244 Cal. Rptr. 148, 749 P.2d 803; ["there is no justification for permitting a witness prior inconsistent statement to make admissible other prior statements of the witness, even though made at the same time, that are not inconsistent with the witness testimony "].)
However, on direct examination the following exchange occurred:
"Q. . . . [P] When Deputy Daulton initially spoke with you looking for [appellant], when he initially spoke with you at your home, did you express to him any type of feelings of fright or
"A. No.
"Q. — terror?
"A. No.
"Q. None at all?
"A. No."
Katherines statements quoted above are inconsistent with this evidence. Moreover, as demonstrated in the preceding paragraph, Katherine was given the opportunity to explain or deny her prior statements. (§ 770, subd. (a).) Therefore, under the prior inconsistent statement exception to the hearsay rule, the challenged testimony did not constitute inadmissible hearsay. (§ 1235.) Because this testimony was not inadmissible hearsay, counsels failure to object on hearsay grounds was not ineffective representation. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 ["counsels failure to make a futile or unmeritorious objection is not deficient performance"].)
In a similar vein, appellant argues that Deputy Daultons testimony that Katherine stated on February 28th that she was "scared" is consistent with her testimony that when she spoke to the deputy that day she was "upset." Therefore, he contends, the deputys testimony on this point was inadmissible hearsay, and counsel, in failing to object or move to strike on this ground, rendered constitutionally deficient representation. Again, we disagree.
On direct examination the prosecutor, referring to the February 28th telephone conversation, asked Katherine, "were you afraid of the defendant at that point?" She answered, "No." Katherines statement that she was "scared" on February 28th is inconsistent with this testimony, and evidence of that statement was offered in compliance with section 770. (§ 770, subd. (a)). Therefore, any objection on hearsay grounds would have been unmeritorious. (& sect; 1235.)