Opinion
E052677
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. GEUKA ADIBISHI JACKSON, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF138601 & RIF153397)
OPINION
APPEAL from the Superior Court of Riverside County. Curtis R. Hinman, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Geuka Adibishi Jackson appeals following a jury conviction. He contends his convictions on three out of six counts must be reversed, because the trial court excluded exculpatory testimony by a defense investigator about a telephone interview the investigator had with an individual who claimed to be defendant's brother.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged and convicted by a jury of the following six counts: transportation of cocaine base (count 1—Health & Saf. Code, § 11352, subd. (a)); unlawful possession of ammunition and reloaded ammunition (count 2—Pen. Code, § 12316, subd. (b)(1)); felon in possession of a Remington shotgun and a Ruger 357 handgun (counts 3 and 4—Pen. Code, § 12021, subd. (a)(1)); resisting or obstructing a peace officer (count 5—Pen. Code, § 148, subd. (a)(1)); and possession of marijuana for sale (count 6—Health & Saf. Code, § 11359). In a bifurcated proceeding, the court found true the allegation defendant was out on bail when he committed the offense charged in count 6. The court also found true allegations defendant served three prior prison terms within the meaning of Penal Code section 667.5 and had a prior conviction that qualified as a strike under Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). Defendant was sentenced to a total of 13 years, 8 months in state prison.
Counts 1 through 5 arose out of a traffic stop and subsequent vehicle pursuit on September 3, 2007. Defendant challenges only the convictions on count 2, possession of ammunition, and counts 3 and 4, felon in possession of two different firearms. Count 6, possession of marijuana for sale, arose out of a later incident on November 4, 2009. We have not included a summary of the facts related to count 6, because defendant does not challenge the conviction on that count and because it is factually unrelated to the other counts.
According to testimony presented by the prosecution at trial, deputies initiated a traffic stop about 5:18 p.m. on September 3, 2007, after observing a gray truck with expired registration. The truck came to a stop on the side of the street in front of the patrol vehicle, but then it accelerated and drove away as the deputies exited their vehicle. As a result, the deputies got back into their vehicle and pursued the truck at speeds of up to 50 to 60 miles an hour through a residential community.
Both the truck and the patrol vehicle were traveling at 40 to 50 miles an hour on a residential street when one of the deputies saw the door on the driver's side of the truck open. Defendant's stuck his hand out and something "mist[ed] out into the air." After traveling about a mile, defendant jumped out of the driver's side of the truck and ran, leaving the truck moving. One of the deputies ran after the truck to prevent it from hitting anything; the other deputy chased defendant on foot. Defendant fell a short distance from the deputy who was chasing him; he was apprehended and handcuffed without further incident. A useable quantity of rock cocaine weighing 1.3 grams and a pill bottle containing a gram of marijuana were found in defendant's pockets.
Next, two deputies went to defendant's residence address and searched the home and vehicles parked on the property. Keys to this residence were found in defendant's pocket. In an apparently inoperable and unlocked van parked in the back yard, one of the deputies found a sawed-off Remington shotgun hidden in a trash bag underneath the back seat. Based on the surroundings, the deputy could not tell how long it had been since anyone had been inside the van. Inside the residence, the deputy searched the garage, which had been converted to a bedroom. On the floor, he found a locked Ruger gun case. The deputy was able to open the case with a key found in defendant's pocket. Inside the case, the deputy found 11 live .38-caliber bullets and one live 12-gauge shotgun round. The deputy determined the shotgun round fit inside the shotgun found inside the van. In the garage bedroom, the deputy also found two operable digital scales and a piece of mail addressed to defendant at the subject residence.
Another deputy searched an unlocked vehicle parked in the driveway of the residence and found a .357 Ruger handgun inside a sock underneath the rear seat on the driver's side. The revolver was loaded with six .38-caliber rounds, and fit into the gun case found inside the garage bedroom. The vehicle was not registered to defendant.
One of the deputies involved with defendant's arrest testified he had driven by this residence while chasing defendant. The deputy saw five Black males standing in the front yard not far from the vehicle where the .357 Ruger was later found. When he returned a minute later, the males were no longer there.
Defendant's mother testified in his defense. She said she was a pastor and was involved in a number of ministries. She owned the residence where the guns were found and operated it as a sober living home for addicts and alcoholics in recovery. The residence typically had six permanent residents who had to participate in counseling, chores, and 12-step recovery meetings outside the home. However, up to 30 people regularly attended meetings at the home. Sometimes people slept in the van that was parked in the back yard. Because residents relapsed while living in the home, she searched it two or three times a week; however, she had not searched the van. During the searches, she found drugs and drug paraphernalia but did not find guns or rock cocaine in the home.
Most significantly, defendant's mother testified her son lived in an apartment and had never lived in the subject residence. She claimed the keys found in defendant's pocket were hers. Although she said she let defendant use her keys, she also said she did not know the last time she saw the keys and did not know or was not sure about the use for one of the keys on the chain.
In addition, defendant's mother said her son had been mentally ill since 1990 and was unable to handle his own affairs. He received social security disability benefits because he was paranoid schizophrenic and bipolar. She said she had seen defendant become fearful and run many times. He also suffers from depression and has trouble understanding things, so people are sometimes able to take advantage of him.
During direct and cross-examination, defendant's mother admitted she pled guilty in this case to possession of drug paraphernalia: a scale, which was found in her home. During direct examination, she also admitted she had been arrested in November 2009 when police found cocaine dust on the seat of a vehicle she was driving. However, she said the vehicle did not belong to her. She had borrowed it from a friend and did not know the cocaine dust was there.
Gregory Robertson told a defense investigator, Dean Kiel, that he was defendant's brother and was the owner of any drugs or weapons found inside the subject residence. Robertson was therefore subpoenaed to testify at trial on defendant's behalf. However, Robertson exercised his Fifth Amendment right to remain silent. He was therefore unavailable as a witness. The defense then sought to present testimony by Kiel, who had interviewed Robertson by telephone. Defense counsel argued the statements Robertson made to Kiel were admissible as an exception to the hearsay rule, because they were made against Robertson's penal interest.
Pursuant to Evidence Code section 405, the trial court considered Kiel's testimony about his interview with Robertson outside the presence of the jury. After oral argument on admissibility, the court excluded Kiel's testimony under Evidence Code section 1230. According to the court, the statements allegedly made by Robertson to Kiel did not qualify under Evidence Code section 1230 as exceptions to the hearsay rule. The court reasoned that Robertson's statements were unreliable, because they were not truly against his penal interest, and did not show he had sufficient knowledge of the subject matter.
Defendant contends the trial court erroneously and prejudicially excluded Kiel's testimony. According to defendant, the trial court's refusal to admit this evidence violated defendant's constitutional right to due process and to present a meaningful defense. He claims the evidence was reliable and important to his defense, because Robertson was his brother, admitted having access to the residence where the guns were found, and specifically said any weapons or drugs found in the subject residence were his. Defendant believes Kiel's testimony would have been enough to raise a reasonable doubt in the minds of the jurors as to whether defendant was the one who concealed the guns. As a result, defendant argues his conviction on counts 2, 3, and 4 must be reversed.
DISCUSSION
Due process "guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" (Crane v. Kentucky (1986) 476 U.S. 683, 690, quoting California v. Trombetta (1984) 467 U.S. 479, 485.) However, this does not mean a defendant has an absolute right to present all relevant evidence. Rather, the right is subject to reasonable restrictions by the trial court. (Montana v. Egelhoff (1996) 518 U.S. 37, 42.)
"Evidence 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, was so far contrary to the declarant's pecuniary or proprietary interest, or 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." (Evid. Code, § 1230.) We review a trial court's decision to exclude evidence under Evidence Code section 1230 for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 536.)
A declarant who claims the Fifth Amendment right to be silent is unavailable within the meaning of Evidence Code section 1230. (People v. Cudjo (1993) 6 Cal.4th 585, 607.) For evidence to be admissible under Evidence Code section 1230, the proponent has the burden to show that any statements were against the declarant's penal interest when made, and that the statements were sufficiently reliable to justify admission despite the general rule against admission of hearsay. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) "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.]" (Cudjo, at p. 607.)
Without reservation, and based on our careful review of the record, we agree with the trial court's conclusion Kiel's testimony about his interview with Robertson was inadmissible under Evidence Code section 1230. Kiel testified he had a telephone interview with Robertson, and Robertson confirmed he was defendant's brother. Robertson told Kiel he lived at the subject residence and had knowledge about drugs and weapons inside the residence. Robertson said he had been arrested for possession of drugs and weapons at the subject residence one day prior to defendant's arrest, and the drugs and weapons found inside the residence were his. Robertson did not describe any of the drugs or weapons and did not tell Kiel where they were located. Kiel did not ask Robertson to describe the weapons. Other than his name and birth date, Kiel did not obtain any identifying information from Robertson. Nor did Kiel take any steps to confirm Robertson's identity or corroborate Robertson's statements, such as checking the date and circumstances of his arrest. After the telephone interview, Kiel served a subpoena on Robertson; he could tell it was the same person he spoke with during the telephone interview, because he recognized Robertson's distinct voice.
From Kiel's testimony, it is clear Robertson did not have sufficient knowledge of the subject matter. According to Kiel, Roberson "didn't want to be specific." He only said the "drugs and weapons" located inside the home belonged to him. He did not provide Kiel with verifiable identifying information. In fact, Kiel admitted he could have been talking to anyone claiming to be defendant's brother. Robertson also did not provide any details of his own claimed arrest or the facts and circumstances surrounding defendant's arrest. Kiel did not verify that Robertson had indeed been arrested at the subject residence the day before defendant's arrest. Most tellingly, Robertson was suspiciously general and provided no specific description of "the weapons" or "the drugs" or where he supposedly left them inside the residence.
It is also clear Robertson's statements were not truly and actually against his penal interest. First, the deputies who searched the subject residence did not testify they found drugs in the home. The only drugs located by the deputies were rock cocaine and a small bottle of marijuana, and these were both found in defendant's pocket, not in or around the residence. Second, only ammunition was found inside the residence. The two guns were found outside the residence: inside the van parked in the back yard, and in a vehicle parked in the driveway. As the court noted in reaching its decision to exclude Robertson's statements, there is no real chance Robertson could successfully be prosecuted for the statements he made to Kiel, because the drugs were found in defendant's pocket and the guns were found outside the subject residence in vehicles. Although defendant blames Kiel for the lack of details obtained during the interview, it is also reasonable to infer Robertson was intentionally vague and only made general statements, because he wanted to try to help defendant without actually incriminating himself.
Based on the foregoing, it was appropriate and reasonable for the trial court to exclude Kiel's testimony under Evidence Code section 1230. For the same reasons, we also conclude there was no violation of defendant's due process right to present a meaningful defense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.