Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F07012.
RAYE, P.J.
A jury convicted defendant Clifford George of one count of possessing a dirk or dagger while confined in prison. (Pen. Code, § 4502, subd. (a); further undesignated statutory references are to the Penal Code.) The trial court found that defendant had three prior serious felony convictions within the meaning of the “three strikes” law. (§§ 667, subds. (b)-(i), 1170.12.) Consequently, the court sentenced defendant to a prison term of 25 years to life, consecutive to the sentence he was already serving.
On appeal, defendant contends (1) the trial court abused its discretion by precluding the defense from introducing a declaration in which his cellmate admitted responsibility for one of the weapons, (2) the court erred by allowing a second count, which pertained to another weapon found in the cell, to be considered by the jury, and (3) the cumulative prejudice of the alleged errors compels reversal of the judgment.
We conclude that the trial court did not err in finding the cellmate’s declaration insufficiently untrustworthy to be admissible as a declaration against penal interest. We also reject defendant’s second contention because he was acquitted of the charge that he complains was improperly submitted to the jury. Finding no error, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
On the morning of March 2, 2007, Correctional Sergeant (now Lieutenant) Sam Banke and Officer Anthony McNeal conducted a search of a cell in Folsom Prison that housed defendant and another inmate, Christopher Edwards. When the officers entered the cell, defendant appeared to be asleep on the bottom bunk. Defendant was lying on his stomach with his hands underneath his pillow. Edwards was lying on the top bunk, also apparently asleep.
Sergeant Banke positioned himself at the cell’s entrance and instructed defendant to get out of bed. As a matter of standard protocol, officers move only one inmate at a time. Only after repeated orders by Sergeant Banke and Officer McNeal did defendant slowly sit up in bed. Unbidden, Edwards also began to sit up on the upper bunk. Edwards was instructed to remain seated on his bunk.
Officer McNeal ordered defendant to stand up. The officer carefully watched defendant as he rose from the bottom bunk and came toward him. Nothing obstructed the officer’s view of defendant’s movements. Defendant was handcuffed and placed in another holding cell with the assistance of Officer Pulley.
Once defendant was removed from the cell, Sergeant Banke instructed Edwards to come down from the top bunk with his hands where the sergeant could see them. Sergeant Banke and Officer McNeal carefully watched as Edwards complied. Sergeant Banke did not see anything in Edwards’s hands. Likewise, Officer McNeal did not see Edwards with anything in his hands or get rid of anything that he had been holding. Edwards made no motion toward the lower bunk on which defendant had been sleeping. Edwards was removed from the cell by Officer de Rosa.
Sergeant Banke and Officer McNeal searched the cell. Taped to the bottom of the cell door, Officer McNeal found an inmate-manufactured weapon. The weapon consisted of small, round metal stock that was about three or four inches long and ground to a point at one end. Blue cloth was wrapped around it to form a handle.
Officer McNeal found another inmate-manufactured weapon underneath the pillow on which defendant had been lying. The weapon was a seven-inch knife with a blade of approximately four inches. The knife was out of its sheath when found.
Sergeant Banke and Officer McNeal testified that inmate-manufactured weapons are hidden by inmates throughout the prison. The cell that housed defendant and Edwards is located in a building with approximately 29 to 32 cells on each of five tiers. Two inmates are housed in each cell.
During the day, inmates move throughout the cellblock and have access to other cells on their tier. Even so, Officer Banke testified that it would be easier to hide the weapon found under the door from inside the cell when no one was around, rather than to attempt to conceal the weapon when the door was open and staff patrolled the tier.
No fingerprint impressions were found on either weapon.
Defense Evidence
Defendant testified on his own behalf and admitted three prior robbery convictions as well as a conviction for possession of cocaine for sale. Defendant had known Edwards since October 2004. They had been cellmates for almost a year prior to the search.
Defendant acknowledged that nothing blocked Sergeant Banke and Officer McNeal from observing defendant lying on his bed once the officers entered the cell. However, defendant also stated, “You can’t really see anything in there” because the cells are dark and he had boxes and a sheet at the foot of the bed to block outside light.
Defendant denied having any prior knowledge about either of the weapons found in his cell. He first learned of the weapons when Sergeant Banke and Officer McNeal came to his temporary holding cell to tell him that he had been issued a “115, ” which is “like a ticket.”
The Department of Corrections and Rehabilitation uses a “115” as a way by which to “document[] misconduct that is ‘believed to be a violation of law or is not minor in nature.’ (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)” (In re Reed (2009) 171 Cal.App.4th 1071, 1077 & fn. 2.)
Defendant explained that each day the cell door was open for many hours when he and Edwards were not present. The cellblock, is large, and defendant estimated that it housed about 1, 200 inmates at the time of the search. Only one correctional officer is on duty at any time to control multiple tiers. During the day, there is a great deal of activity in the cellblock with inmates going to their work assignments, classes, showers, meals, to make phone calls, and to pick up necessities. Thus, one of the hundreds of other inmates in the cellblock could have hidden the weapon under the cell door.
Defendant asserted that the weapon found under the door had to have been taped to the bottom of the cell door from the outside when the door stood open. He explained that there was not adequate clearance from the cell floor to reach under the door when it was closed. However, when the door stood open, it came to rest about a foot above the outside floor.
Defendant admitted that the position in which he was sleeping when the officers came into his cell meant that he probably would have felt a weapon if it had been under his pillow. However, he denied prior knowledge of the knife found under his pillow.
DISCUSSION
I. Claimed Error in Exclusion of Edwards’s Written Declaration
Defendant contends the trial court erred in excluding a written declaration, signed under penalty of perjury, in which Edwards asserted that he was responsible for the knife found under defendant’s pillow. We reject the contention.
A
When called by the defense to testify, Edwards invoked his Fifth Amendment right against self-incrimination. The defense then sought to introduce a written declaration signed by Edwards in which he admitted that the knife was his. The prosecution opposed the admission of the declaration on grounds that it was untrustworthy.
Outside the presence of the jury, the defense called inmate Glenn Robison to testify about the circumstances giving rise to the declaration by Edwards. Robison testified that he was an inmate in Folsom Prison and had been convicted of petty theft with a prior (§ 666) and failure to appear. About a week after Edwards was released from administrative segregation, he told Robison that he “felt responsible for the weapon under George’s pillow.” Two or three weeks later, defendant told Robison that Edwards wanted to sign a declaration to accept responsibility for the weapon found in defendant’s bed.
Around December 20, 2007, Robison contacted Edwards about the declaration. Defendant was not present, and Edwards did not appear to be coerced or under duress. Edwards wanted the declaration to explain “how the weapons really came about to be placed inside the cell” and dictated the declaration to Robison. Edwards appeared to be sincere in explaining that defendant should not take the blame for something that was Edwards’s responsibility.
The first declaration had a typographical error in it, so Robison retyped it and met with Edwards two or three days later to have him sign. Edwards signed the declaration and Robison signed as a witness. In pertinent part, the declaration states, verbatim: “[D]uring the time that I was ordered down from the top bunk, I was in possession of a prison made weapon, and as I climbed down, I was again order[ed] to move out of the cell, I panic[ed], then bent down at the end of the bunk to put on shoes, which is at the end of the cell, where my shoe lies under the bottom bunk, bent down and slide [sic] the weapon found under the pillow that inmate George was lying on.”
At the time Edwards signed the declaration, Robison thought the 115 against Edwards was still pending. Edwards later told Robison that he had been found guilty of the 115.
About two or three weeks after signing the declaration, Edwards told Robison that he thought the statute of limitations had run on the charge of being an inmate in possession of a weapon. Nonetheless, Edwards asked Robison to research the applicable statute of limitations. Robison, who had access to the prison law library, concluded that a three-year period applied. When Robison informed Edwards that the statute of limitations had not yet run, Edwards did not appear surprised.
In submitting the issue of the declaration’s admissibility for the trial court’s decision, the parties stipulated: “Edwards has been convicted of four burglaries: Three of which are first degree residential burglaries. [¶] Because of these convictions, he falls under the three strikes statute, was sentenced to 40 years to life state prison in 1997. [¶] Edwards [sic] earliest projected release date is October 13th of 2033. On that date, he will be 71 years old. [¶] Edwards’ 115 hearing date was held on October 8th 2007 before Lieutenant Anthony Gentilly (phonetic). [¶] Prior to that hearing, Edwards was provided with reports detailing the correctional officer’s discovery of two weapons in he and George’s cell, March 2nd, 2007. [¶] One weapon taped under the cell door, and one weapon under a pillow Inmate George was sleeping on. [¶] Edwards was given an opportunity to call witnesses, make a statement himself at the hearing. [¶] At that hearing, the only statement he made was, quote, there is no way that piece, end parenthesis, added, inmate manufactured weapon would fit under the door, end of quote. [¶] At that hearing, Inmate Edwards never admitted the weapon found underneath George’s pillow was his.”
The trial court found that Edwards was an unavailable witness after he invoked his Fifth Amendment right to refuse to testify. However, the trial court excluded the declaration signed by Edwards. In so ruling, the court explained: “An initial threshold issue in this case is whether the statement is reliable or trustworthy sufficiently such that the matter can go before the jury.
“To determine trustworthiness, the Court may take into consideration the circumstances and possible motivation of the defendant, and the declarant’s relationship to the defendant.
“Based upon the Court’s evaluation of the utterance, court finds that the statement lacks sufficient reliability or trustworthiness to permit its admission, and finds it is not properly admissible under Evidence Code Section 1230.
“The statement from Mr. Edwards was prepared and submitted for us in Mr. George’s criminal prosecution, the statement was not a spontaneous statement made under circumstances that would indicate its reliability. It was in fact prepared possibly eight months, possibly more after the occurrence itself.
“The declarations itself is addressed to Mr. George, and I think its [sic] interesting to note that Mr. Robison went to Mr. Edwards in response to a request by Mr. George.
“Both Mr. George and Mr. Edwards had been cellmates at the time, and there doesn’t appear to be any evidence of animosity between the two that would indicate that the statement is trustworthy. More importantly, the declaration, apparently, was executed after the declarant had been prosecuted for a 115.
“There was no further arresting at that time, that the defendant would receive administrative sanctions.
“And I think it’s reasonable to assume that given the timing of the declaration, and the date of the occurrence, that Mr. Edwards could have easily -- and I think the circumstances suggest that he assumed that he would not be subject to criminal prosecution at least at the time of the utterance.
“It is interesting to note that Mr. Robison initially indicated, although I agree Mr. Robison is confused with a number of things, he did indicate that at the time that Mr. Edwards provided the statement to Mr. Robison, the initial statement that Mr. Robison indicated was Edwards thought the statute of limitations had run out. And then subsequent to testifying to that, he indicated that a couple of weeks later there was a discussion between the two involving what the true statute of limitations was.
“Obviously, that would reconcile with the fact that now Mr. Edwards is assuming -- or taking the Fifth Amendment at this time. So it would seem consistent, at least, that Mr. Edwards gave a statement at the time he believed the statute of limitations had run out, or that he was no longer subject to criminal prosecution, or the alternative as Mr. Harry has indicated, he simply didn’t care because of the fact that he’s doing a life sentence at this point.
“So the Court finds there is insufficient indicia of reliability to permit admission of the statement, the evidence would suggest the statement is unreliable and to [present] its admission would be misleading to the jury.
“Independent from this Court’s determination the statement is unreliable, the Court would also find that the statement is not a statement against penal interest. Although, the Defense Exhibit contains a statement where declarant admits to possessing one of the weapons found in the cell, give[n the] circumstances under which the statements were made, the Court does not find that statement is such that a reasonable person would have made that statement unless it were true.
“This is one of those unusual cases where in fact the contrary is true: Circumstances under which the declaration was prepared, suggests that the statement was specifically designed to exonerate the defendant made by a declarant who had already been punished for it -- his involvement through administrative proceedings, and no longer either believed he was facing prosecution or frankly did not care if he was prosecuted.
“Unlike typical circumstances where a declaration against penal interests are made, the declarant in this particular case had nothing to lose and perhaps much to gain within the prison culture by providing an exonerating statement to his former cellmate.”
B
Under Evidence Code section 1200, “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated” is generally inadmissible as hearsay. However, an exception to the rule against hearsay exists for declarations against penal interest. To this end, Evidence Code section 1230 provides that “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true.”
The party seeking to admit evidence under this exception “must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Lucas (1995) 12 Cal.4th 415, 462.)” (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) A witness who refuses to testify by invoking the Fifth Amendment privilege against self-incrimination is deemed to be an unavailable witness. (Evid. Code, § 240, subd. (a)(1).)
To be admissible, a declaration against penal interest “must be ‘distinctly’ against the declarant’s penal interest and must be ‘clothed with indicia of reliability.’ (People v. Shipe (1975) 49 Cal.App.3d 343, 354.)” (People v. Jackson (1991) 235 Cal.App.3d 1670, 1677-1678.) As the California Supreme Court has noted, “‘the precedents in the hearsay area provide a persuasive reminder that declarations against penal interest may contain self-serving and unreliable information’ and, consequently, ‘an approach which would find a declarant’s statement wholly credible solely because it incorporates an admission of criminal culpability is inadequate.’ (People v. Campa (1984) 36 Cal.3d 870, 883, italics in original.) As scholars have observed, ‘“a self-serving statement lacks trustworthiness whether it accompanies a disserving statement or not.”’ (People v. Leach (1975) 15 Cal.3d 419, 439, fn. 15 (Leach), quoting Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule (1944) 58 Harv. L.Rev. 1, 60.) Moreover, that a hearsay statement may be facially inculpatory or neutral cannot always be relied upon to indicate whether it is ‘truly self-inculpatory, rather than merely [an] attempt[] to shift blame or curry favor.’ (Williamson v. United States [(1994)] 512 U.S. [594, ] at p. 603 [129 L.Ed.2d 476] (Williamson).) Even a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. (See, e.g., People v. Coble (1976) 65 Cal.App.3d 187, 191.) Ultimately, as the high court has noted, ‘whether a statement is self-inculpatory or not can only be determined by viewing it in context.’ (Williamson v. United States, supra, at p. 603.)” (Duarte, supra, 24 Cal.4th at pp. 611-612.)
“To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.] On appeal, the trial court’s determination on this issue is reviewed for abuse of discretion. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 607.) A trial court abuses its discretion “only when its ruling ‘“‘fall[s] “outside the bounds of reason.”’” [Citation.]’ (People v. Benavides (2005) 35 Cal.4th 69, 88); accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [abuse of discretion requires a showing that the trial court ‘“exceed[ed] the bounds of reason, all of the circumstances before it being considered”’].” (People v. Jacobs (2007) 156 Cal.App.4th 728, 736.)
C
Hence, there was no abuse of discretion. The trial court properly found that Edwards was unavailable as a witness once he invoked his Fifth Amendment right against self-incrimination. (Evid. Code, § 240, subd. (a)(1).) And the trial court properly determined that the circumstances of his confinement and the timing of his declaration rendered the declaration untrustworthy.
Given that Edwards’s release date would be no earlier than 2033, when he will be 71 years old, the distant possibility of release from custody undermined the incentive to avoid an increased prison sentence. It was reasonable to conclude that he did not care about the possible additional years in prison that might flow from a conviction for the weapons possession charge. Moreover, as the trial court noted, Edwards more immediately stood to gain by taking the blame for the offense for defendant. By helping defendant avoid criminal responsibility, Edwards’s declaration was likely to “curry favor” from his cellmate. (Williamson, supra, 512 U.S. at p. 603 [129 L.Ed.2d at p. 485].)
The declaration was more likely to confer immediate advantages to Edwards so that the disadvantage of distant punishment was outweighed. On this point, it is significant that Edwards did not admit possession of the knife found under defendant’s pillow when it would have made an immediate difference to him: during the hearing on his own 115 charge. Had Edwards been willing to suffer the immediate consequences of a prison disciplinary action, his admission of responsibility would have had a greater aura of reliability. Instead, Edwards did not admit culpability until later and only for purposes of charges that had little, if any, material consequence.
Defendant points out that Edwards dictated and signed the declaration at a time when even a one-year statute of limitations would have subjected him to criminal prosecution. However, as we have pointed out, the prospect of additional prison time was not such a significant penalty that it cloaked Edwards’s statement with trustworthiness.
Defendant next argues the possibility that Edwards would not care about additional prison time constituted an issue for the jury, rather than the court, to consider. Not so. The trial court was required to make a threshold determination about whether the declaration was sufficiently trustworthy to be presented for jury consideration. (Duarte, supra, 24 Cal.4th at pp. 610-611.) Here, the trial court fulfilled its duty to determine the admissibility of the evidence before it was submitted to the jury. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1336.) And, as we have explained, the trial court did not abuse its discretion in excluding the declaration as untrustworthy.
As defendant correctly points out, the trial court gave additional reasons for excluding Edwards’s declaration. These additional rationales were that the declaration was (1) offered in a criminal trial, (2) addressed to defendant, (3) made when Edwards went to Robison at defendant’s direction, and (4) was not the product of any animosity between defendant and Edwards. Even if these rationales failed to support the trial court’s ruling, the evidentiary ruling nonetheless reached the correct result. “If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below.” (People v. Brown (2004) 33 Cal.4th 892, 901.)
The proper exclusion of the declaration undermines defendant’s contention that the ruling denied him his federal and state jury trial rights. A defendant’s constitutional rights are not violated by the exclusion of evidence under the well-established rule against hearsay. (See People v. Smithey (1999) 20 Cal.4th 936, 995.)
In sum, the trial court did not abuse its discretion or violate defendant’s constitutional rights in excluding Edwards’s declaration as insufficiently untrustworthy to be admissible as a statement against penal interest.
II. Claimed Error in the Submission of Count Two to the Jury
Defendant contends the trial court erred in submitting the charge relating to the weapon found under the cell door for consideration by the jury. Even if defendant established some sort of error on this ground, he was acquitted on this charge. Thus, defendant does not establish prejudice as to count one. The record shows that the jury properly performed its duties, analyzing each count separately.
III. Claimed Cumulative Prejudice
Finally, defendant contends the cumulative prejudice of the errors he alleges in the exclusion of the declaration and improper submission of count two to the jury requires us to reverse the judgment. Having been acquitted of count two, the only potential relief available pertains to defendant’s conviction for the knife found under his pillow. And, as we explained in part I, ante, we perceive no error in the trial court’s exclusion of Edwards’s declaration. Without any showing of error, there can be no prejudice. (See People v. Jablonski (2006) 37 Cal.4th 774, 832.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., MAURO, J.