Opinion
2d Crim. No. B294245
05-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JESSE LEE HUBBLE, Defendant and Appellant.
Earl E. Conaway III, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18F-01035)
(San Luis Obispo County)
Jesse Lee Hubble appeals a judgment following his conviction for arson of an inhabited structure (Pen. Code, § 451, subd. (b) ) and arson of property (id., subd. (d)), with findings that he had one prior serious felony conviction (§ 667, subd. (a)), and that he had served a prior prison term (§ 667.5, subd. (b)). In a separate case (No. 18F-00067), he pled no contest to second degree burglary. The sentencing included both cases. The trial court imposed an aggregate prison term of 24 years 8 months. The sentence included a five-year consecutive enhancement under section 667 and a one-year consecutive term under section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise stated. --------
We conclude, among other things, that: 1) Hubble's statements and conduct in response to police questioning constituted adoptive admissions that were properly admitted into evidence; 2) due to a mistake in the People's case, a portion of Hubble's statement to police where he invoked his right to counsel was admitted into evidence; 3) the trial court did not err by denying a motion for a mistrial; 4) the trial court gave a proper curative instruction to the jury and the mistaken admission of this evidence did not constitute reversible error; but 5) we remand for resentencing because of the passage of Senate Bill Nos. 136 and 1393 which amend the enhancements the trial court imposed under sections 667 and 667.5, subdivision (b).
FACTS
On the night of November 26, 2017, James Hitchen was sleeping in his home at 404 Pecan Street when he was awakened by the sound of smoke detectors. He saw flames "rolling up out of the front" of his house where his truck was parked. His truck was 22 feet long with a "camper shell." It was parked next to his house. There was a "box trailer" next to the truck. The truck "was in flames." The fire department responded and "extinguished" the fire. After the fire was extinguished, Hitchen looked at his "digital video security camera." On that video tape he saw a person crossing the street in front of his house, walking across his driveway, and "disappearing behind the truck." A few minutes later, "the flames started." Hitchen could not see the person's face, but he was "pretty sure he was a male," 5 feet 10 inches tall, weighing between 175 and 200 pounds, and wearing a shoe containing reflecting material. Hitchen gave the video to the police, but his "[digital video recorder] had rewritten over the existing event."
Jon Villanti was a police officer and Hitchen's neighbor. On the night of November 26, he woke to the sound of a "very large explosion in the neighborhood." Villanti had a surveillance video camera that could view Hitchen's residence at 404 Pecan Street. He testified his "surveillance system runs constantly, and it goes on the cloud." He believed it would contain relevant information and he provided it to the police.
Around the same time that night, there was another fire that occurred down the same street from the Hitchen home involving a green waste container near another home.
Brian Salce, a fire battalion chief, testified the origin of the Hitchen fire was in the rear of the truck. It was caused by an open flame. The origin of the second fire was in a green waste can. It was also caused by an open flame. These fires were set "intentionally."
Police Detective Vince Johnson testified that he had known Hubble for approximately 15 years. He had seen him in the community 75 to 100 times. Hubble had a "distinctive walk." It was "kind of a glide, a saunter." There is a "specific way his hips move." Johnson was familiar with his "mannerisms," the shape of his head, his hair style, his receding hairline, "the way he moves his arms and walks."
Johnson saw the Villanti video. He was able to immediately identify Hubble in the video. The video was taken near the time the fire started. There was nobody else "walking in the vicinity of Pecan Street" at that time. The video did not provide a clear picture of Hubble's face, but Johnson could identify him based on his height, weight, receding hairline, the shape of his head, the way he walks, moves his arms, and his mannerisms.
Johnson read Hubble his Miranda rights. Hubble understood his rights. He "nodded his head up and down and said 'yes.' " Johnson showed Hubble a portion of the Villanti video. Hubble's reaction to seeing that video was to say, "I don't recall being there." Hubble told Johnson that "he walks around Arroyo Grande a lot." Hubble never denied that it "was him on the video."
Johnson testified that he asked Hubble "why he lit the fires." Hubble responded, "I believe I need to talk to my attorney." After the prosecutor asked Johnson additional questions to refresh his recollection, Johnson corrected his testimony. He said he asked Hubble "why he lit the trailer on fire," and Hubble responded, "I don't remember being there." When Johnson asked that question again, Hubble then requested counsel.
Police Commander Shawn Cosgrove testified he had known Hubble for a long time. When he saw the Villanti video, he "immediately recognized" Hubble as the person shown in that video. He was able to identify him by his unique "mannerisms" and the way he "moves." During the police interview, Hubble did not deny that he was the person shown on the Villanti video. When Johnson told Hubble "it's you" shown on the video, Hubble nodded his head to indicate "yes."
The Motion for a Mistrial
Hubble's trial counsel moved for a mistrial because Johnson testified Hubble had invoked his right to counsel. The prosecutor opposed the motion, claiming that portion of Johnson's testimony was the result of Johnson's mistake regarding the sequence of Hubble's responses to questioning. The prosecutor was surprised by it, did not expect Johnson to mention it, and the People did not intend to introduce that evidence.
The trial court denied the motion. It decided to give the jury an instruction so that jurors would disregard that portion of the testimony.
DISCUSSION
Adoptive Admissions
Hubble contends the trial court erred by admitting his statements to the police during the interrogation.
The People contend Hubble's statements and his conduct in response to police questioning constituted adoptive admissions which were properly admitted into evidence. We agree.
" 'Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.' " (People v. Armstrong (2019) 6 Cal.5th 735, 789.) " 'Under this provision, "[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment . . . , and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." ' " (Id. at pp. 789-790.)
A defendant's " 'silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.' " (People v. Riel (2000) 22 Cal.4th 1153, 1189.) A defendant's response to an accusatory statement " 'was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide.' " (Id. at pp. 1189-1190.)
After advising Hubble of his Miranda rights, Johnson showed him a portion of a surveillance video taken from the Villanti house. Hubble responded, "I don't recall being there." Johnson said, "That's you. I recognize you. I know you." Johnson testified that Hubble "nodded his head up and down yes." Johnson was asked, "Did [Hubble] ever deny it was him on the video?" Johnson: "No." Johnson also testified that he asked Hubble "why he lit the trailer on fire" and Hubble responded, "I don't remember being there." Cosgrove testified that Hubble "shook his head up and down" in a manner to indicate "yes" in response to Johnson's statement to Hubble that Hubble knew it was him on the video.
An adopted admission may be based on a defendant's conduct. (People v. Armstrong, supra, 6 Cal.5th at p. 789; People v. Riel, supra, 22 Cal.4th at pp. 1189-1190.) Here Hubble knew he was being accused of a crime and he did not deny that accusation. The jury could reasonably infer Hubble's responses and his nodding head movement were adoptive admissions. (Riel, at pp. 1189-1190.)
Hubble relies on People v. Abbott (1956) 47 Cal.2d 362 and People v. Simmons (1946) 28 Cal.2d 699. But those admissions involved cases where defendants said they were refusing to talk on advice of counsel or attempting to exercise their privilege against self-incrimination. Those factors are not present here as Hubble made the adoptive admissions before he requested counsel and after being advised of his Miranda rights.
Hubble cites People v. Bracamonte (1961) 197 Cal.App.2d 385. But there the court held that a defendant's drug-induced or intoxicated state would explain his silence "and negate any expectation of denial." (Id. at p. 390.) Here there is no showing that Hubble was intoxicated or under the influence of any drug. The trial court did not err by admitting this evidence.
The Mistake, Mistrial Motion, and the Curative Instruction
When the prosecutor first asked Johnson what Hubble's response was to the question "why he lit the trailer on fire," Johnson testified that Hubble said, "I believe I need to talk to my attorney." Johnson later clarified that Hubble only asked to speak with counsel after Johnson asked why he lit the trailer on fire during the second time he had asked that question. But the jury heard the reference to Hubble's request to speak with counsel.
Hubble contends his "invocation of his right to counsel should never have been placed into evidence." He is correct. Evidence regarding a defendant's decision to request counsel is not admissible. (People v. Armstrong, supra, 6 Cal.5th at pp. 789-790.)
Hubble's trial counsel moved for a mistrial. The prosecutor responded that this evidence about requesting counsel came in by a mistake - a "miscommunication between myself" and Johnson. The prosecutor said he had reviewed Johnson's notes about the police interview and expected Johnson to respond that Hubble initially said, "I don't remember being there." He was surprised when Johnson responded by referring to Hubble's invocation of his right to counsel which did not occur until later. It was not the prosecutor's intent to introduce that invocation. Johnson had made a mistake about the sequence of the responses. The invocation only occurred after the second time Johnson asked why Hubble lit the trailer on fire. The prosecutor went to defense counsel and informed him, "I'm not trying to elicit this invocation . . . ."
The trial court denied the motion for a mistrial. Instead, it decided to give jurors an instruction so that Hubble's statements invoking his right to counsel would not be considered by the jury. The instruction provided, "The defendant has an absolute constitutional right to have counsel present during in-custody questioning by the police, should he choose to ask for counsel. There was testimony that, during the January 10, 2018 interview with Det. Johnson and Sgt. Cosgrove, the defendant invoked his right to have counsel present during continued questioning by the police. The fact that the defendant invoked this right and asked for counsel is not to be considered or used against him in any way."
This instruction properly advised the jury to disregard this evidence. (People v. Lucero (2000) 23 Cal.4th 692, 718.) Absent evidence to the contrary, we presume the jury understood and followed this instruction. (People v. Jablonski (2006) 37 Cal.4th 774, 806-807.) Hubble has not shown why jurors would not understand it or fail to follow it.
Hubble has not shown any prosecutorial misconduct. This evidence came in as a result of a mistake by a witness. (People v. Lucero, supra, 23 Cal.4th at p. 718 [defendant made no showing that the "prosecutor was in any way responsible" for the witness's comment].) Nor has Hubble shown any abuse of discretion by the trial court in deciding to give the instruction instead of granting a mistrial. (Ibid.)
Moreover, any alleged error in admitting evidence about his invocation of counsel was harmless because, as the People note, there was additional strong evidence to support the judgment. In reviewing the sufficiency of the evidence, we draw all reasonable inferences in support of the judgment. We do not weigh the evidence or decide the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Here the video evidence was highly incriminating. The Villanti video surveillance camera was operating at the time of the explosion and it was pointed in the direction of Hitchen's house. Johnson testified he had known Hubble "for over 15 years." He recognized Hubble on that surveillance video tape and nobody else was in that vicinity at that time. Cosgrove testified he was familiar with Hubble. He had seen him walking around town on 200 prior occasions. He knew his "mannerisms" and the way he "moves." When he viewed the Villanti video, he "immediately recognized" Hubble. He saw him "walk toward the victim's house." Hubble claims the video "is of poor quality." But Johnson testified that "[t]he video is very good quality." Moreover, as the People note, "Before [Hubble] invoked his right to counsel, [he] nodded his head up and down when Detective Johnson said it was him in the video."
Hubble also fit the description of the person on Hitchen's video. Hitchen testified that he viewed his video surveillance tape which showed an individual walk across his yard and "disappear behind the truck." Several minutes later, "the flames started." The person Hitchen saw was between 5 feet 10 inches and six feet tall, weighing between 175 and 200 pounds, and wearing a shoe that contained reflecting material. When Hubble was arrested, his height was 5 feet 10 inches, his weight was 180 pounds, and his shoes contained reflective material.
DISPOSITION
The case is remanded for resentencing because of the passage of Senate Bill Nos. 136 and 1393, which apply retroactively and involve two sentence enhancements imposed in this case. (§§ 667, 667.5, subd. (b).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Craig B. Van Rooyen, Judge
Superior Court County of San Luis Obispo
Earl E. Conaway III, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.