Opinion
B228833
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. TROY REGGIE HAYNES, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Sonya Roth, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA074092)
APPEAL from a judgment of the Superior Court of Los Angeles County. John Vernon Meigs, Judge. Affirmed.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
Troy Reggie Haynes appeals from the judgment entered upon his convictions by jury of four counts of robbery (Pen. Code, § 211, counts 1, 3-5). Appellant admitted the allegations that he had suffered three prior felony strikes within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), three prior serious felony convictions within the meaning of section 667, subdivision (a), and three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to an aggregate state prison term of 115 years to life. Appellant contends that (1) the trial court abused its discretion by concluding that an eyewitness's preliminary hearing testimony regarding one of the robberies was admissible within the inconsistent statement exception to the hearsay rule, resulting in a miscarriage of justice under the California Constitution and a violation of due process under the federal Constitution, and (2) if the foregoing contention was not preserved for appeal, appellant suffered ineffective assistance of counsel.
All further statutory references are to the Penal Code unless otherwise indicated.
Counts 2 and 6, also charging robberies, were dismissed; count 2 pursuant to appellant's section 995 motion, and, later, count 6 pursuant to his section 1118.1 motion.
We affirm.
FACTS
August 8, 2008 robbery (count 1)
At approximately 5:30 a.m., on August 8, 2008, appellant and another man entered the 7-Eleven store at 437 North La Brea, in Los Angeles (La Brea 7-Eleven). They approached the cash register counter with their hands under their shirts or in their pockets. They told the cashier, Abel Cumbay (Cumbay), "This is a robbery, give me all the money." Cumbay was frightened and handed appellant the money from the cash register. The men left the store.
September 14, 2008 (count 2)
At approximately 11:50 p.m., on September 14, 2008, two men entered the La Brea 7-Eleven, walking next to each other with their hands under their shirts. It appeared to Cumbay that they might have a gun. He recognized appellant. The men came directly to the cash register, and appellant announced that it was a robbery. Cumbay gave appellant $70 to $80, and the men left.
October 21, 2008 robbery (count 3)
On October 21, 2008, at approximately 11:30 p.m., Cumbay was working at the La Brea 7-Eleven. Appellant and another man entered the store, announced that it was a robbery and demanded the money. Cumbay was scared and turned over the money.
January 8, 2009 robbery (count 4)
Near 2:00 a.m., on January 8, 2009, appellant and another male, wearing a hooded jacket, together entered the 7-Eleven store at 12021 North Centinela Avenue, in Los Angeles County. The hooded man walked toward the liquor section, and appellant walked toward the front of the store. The cashier, Oscar Cordova (Cordova), told the hooded man that it was too late to purchase liquor. That man walked up to Cordova and behind the counter to the cash register. He put something against Cordova's back and told him to open both registers. Appellant standing on the other side of the counter asked for a pack of cigarettes, which Cordova gave to him. Both men told Cordova not to do anything stupid. Frightened, Cordova opened the registers. The hooded man took the money and ran. Appellant left the store either with the hooded man or before him.
DISCUSSION
I. Improper admission of preliminary hearing testimony
A. Background
Count 3 of the information charged appellant with the September 14, 2008 La Brea 7-Eleven robbery. Cumbay was the only witness to that robbery. He initially could not be located to testify. He was later served with a trial subpoena but failed to appear at the designated time, resulting in the issuance of a bench warrant.
When Cumbay finally appeared for trial, he testified that he could not remember the September 14, 2008 robbery, or speaking with the police about it afterwards. The prosecutor asked if reviewing the police report would refresh his memory, to which defense counsel objected based on lack of personal knowledge. After reviewing the report, Cumbay still could not remember the robbery. He was also unable to recall the October 21, 2008 robbery. He said he could not remember the details of these crimes because they happened over a year earlier, and he was robbed 10 to 12 times during that single year. When asked if he remembered seeing appellant in September 2008, he responded, "Nope."
But Cumbay recalled testifying at the preliminary hearing and believed reviewing that testimony would refresh his memory of the September 14, 2008 robbery. At sidebar, defense counsel objected to Cumbay's review of the transcript without a question pending, and requested that he only be allowed to review the transcript for specific questions asked of him. The trial court overruled the objection.
Cumbay read the portion of the preliminary hearing transcript that pertained to the September 14, 2008 robbery. It did not refresh his recollection. The prosecutor then began to read a portion of Cumbay's preliminary hearing testimony, when defense counsel requested a sidebar conference at which he objected on the ground that there was no question pending or answer from the witness. The trial court explained that the questions and answers from the preliminary testimony could be read into the record because Cumbay's present testimony that he could not remember the incidents was inconsistent with his prior preliminary hearing testimony about the incident. Defense counsel said "okay," and failed to make any further objection to the preliminary hearing transcript.
The prosecutor then read Cumbay's preliminary hearing testimony regarding the September 14, 2008 robbery, into the record. After that testimony was read, Cumbay testified that he recalled giving that testimony. No other testimony regarding the September 14, 2008 robbery, was elicited.
B. Contentions
Appellant contends that the trial court abused its discretion in declaring Cumbay's memory loss inconsistent with his preliminary hearing testimony and allowing that testimony to be read to the jury. He argues that as a result, appellant's conviction of count 2, the September 14, 2008 robbery, was based exclusively on inadmissible hearsay.
The People contend that appellant forfeited this claim by failing to object in the trial court to the reading of the preliminary hearing testimony on hearsay grounds.
We conclude that appellant has forfeited this claim and that, in any event, it lacks merit.
C. Forfeiture
Generally, objections to evidence on the specific grounds asserted must be made or the objection is forfeited. (People v. Derello (1989) 211 Cal.App.3d 414, 428; Evid. Code, § 353 [finding shall not be set aside by reason of erroneous admission of evidence unless, inter alia, there appears of record an objection that was timely and specifically made]; People v. Ervin (2000) 22 Cal.4th 48, 82; People v. Szeto (1981) 29 Cal.3d 20, 32.) Appellant made no objection here to the reading from the preliminary hearing transcript on hearsay grounds. In fact, after the trial court explained that Cumbay's trial testimony that he could not remember the September 14, 2008 robbery, was inconsistent with his prior preliminary hearing testimony about the incident, defense counsel simply said "okay," without making any further objection.
In any event, even if this contention was preserved for appeal, we would reject it.
D. Standard of review
We review the trial court's hearsay ruling under the deferential abuse of discretion standard. (People v. Fields (1998) 61 Cal.App.4th 1063, 1067.) The trial court is accorded broad discretion in determining admissibility of evidence, where underlying the determination is the question of an exception to the hearsay rule. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.) The determination of whether a statement of forgetfulness is feigned is for the trial court, which we affirm "if there is a reasonable basis in the record for its conclusion." (People v. Gunder (2007) 151 Cal.App.4th 412, 418.) The trial court has the distinct advantage of having been able to observe the demeanor of the witness. (See People v. O'Quinn (1980) 109 Cal.App.3d 219, 224.) "When the admissibility of evidence depends upon determinations of fact, the trial court's findings, and in particular its credibility determinations, are reviewed under the substantial evidence standard." (People v. Price (1991)1 Cal.4th 324, 413.)
E. Admissibility of preliminary hearing testimony
Inadmissible hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated." (Evid. Code, § 1200.) Evidence Code sections 770 and 1235provide an exception to the general rule against hearsay evidence where a witness's prior statement is inconsistent with the witness's testimony in the present hearing, provided the witness is given the opportunity to explain or deny the statement. (Evid. Code, § 770, subd. (a).)
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."
Evidence Code section 1235 provides: "Evidence 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 section 770." Evidence Code section 770, in turn, 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."
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"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.] . . . "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. [Citation.]" (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) When, however, "a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied." (Id. at p. 1219.)
No specific factual finding that a statement is inconsistent with a prior statement is a prerequisite for the admission of those statements. (People v. Ledesma (2006) 39 Cal.4th 641, 710.) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto: a separate formal finding is unnecessary unless required by statute. (Ibid.)
Here, the trial court found that Cumbay's preliminary hearing testimony was admissible. It stated: "Today he's saying he doesn't remember the [September 14, 2008 robbery]. That is inconsistent with this prior testimony about the incident. So his prior testimony can be read. That's the way we normally do it." It's ruling implies that it found that Cumbay's failure to recall was feigned or evasive.
Appellant argues that the trial court's ruling was based on "the mistaken principle that if Cumbay simply did not remember the event, then his preliminary testimony was inconsistent and could be admitted as such." But the record fails to indicate why the trial court found that Cumbay's failure to recall was inconsistent with his preliminary hearing testimony. While the trial court did not say that it found Cumbay's failure to recall to be feigned, it also did not say that his lack of recall alone was the reason it found it inconsistent with his preliminary hearing testimony.
We find that there was substantial evidence to support the trial court's implicit finding that Cumbay's lack of recall was feigned and evasive. (People v. Price, supra, 1 Cal.4th at p. 413.) First, Cumbay appears to have attempted to evade appearing in court. He was initially difficult to locate. When he was finally found and subpoenaed, he failed to appear as directed by the subpoena, requiring the trial court to issue a body attachment.
Second, when Cumbay testified, he claimed not to recall the September 14, 2008 robbery, because the La Brea 7-Eleven was robbed nearly a dozen times in a year. However, he nonetheless recalled the robbery in August of 2008, within that same general time period.
Third, he reviewed the police report regarding the September 14, 2008 robbery, and claimed it did not refresh his recollection. He recalled testifying at the preliminary hearing and testified that he believed reviewing that transcript would refresh his memory. Nonetheless, when he reviewed it, he said that it did not refresh his recollection, though he recalled giving that testimony. At the same time, he also claimed not to recall the October 21, 2008 robbery, but when he reviewed the preliminary hearing transcript regarding that robbery, his recollection was refreshed.
Finally, when initially responding to several questions regarding his memory of the September 14, 2008 robbery, he responded with what might have been interpreted by the trial court as a flip, "Nope." The trial court was there and had the opportunity to assess Cumbay's testimony and could properly have concluded that his demeanor suggested that he was evading responding to the questions.
Whether we would have concluded differently is irrelevant. There is reasonable basis in the record for the trial court to have concluded that Cumbay was being evasive in claiming a failure of recall. Consequently, it did not abuse its discretion in allowing the preliminary hearing testimony read to the jury as within the inconsistent statement exception to the hearsay rule.
II. Ineffective assistance of counsel
A. Contention
Appellant contends that if appellant forfeited the foregoing objection by reason of his attorney's failure to specify that he was objecting on hearsay grounds, then he suffered ineffective assistance of counsel. He argues that his counsel failed to be aware of a rudimentary legal principle of hearsay, there was no tactical reason not to assert the correct objection when he tried to object but did so on the wrong grounds, if made on the correct grounds, the objection would likely have been granted, and, if granted, there would have been no evidence in the record regarding the September 14, 2008 robbery. This contention lacks merit.
B. Principles of ineffective assistance of counsel
A successful claim of ineffective assistance of counsel, requires a defendant to demonstrate that (1) counsel's representations fell below an objective standard of reasonableness, and, (2) but for counsel's errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822.)
Because we conclude here that the trial court did not err in permitting the preliminary hearing testimony to be read to the jury as inconsistent to Cumbay's claims of lack of recall, it follows that had appellant's counsel objected to the evidence on hearsay grounds it is not reasonably probable that a more favorable result for appellant would have ensued had that objection been made.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________, J.
ASHMANN-GERST
We concur:
__________, Acting P. J.
DOI TODD
__________, J.
CHAVEZ