Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 07CF0232, Lance Jensen, Judge. Affirmed.
Guillermo Cabrera, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was convicted of two counts of grand theft and three counts of passing nonsufficient funds checks. She argues that due to improper foundations and hearsay, some of the evidence against her at trial should not have been admitted. We disagree and affirm.
I
FACTS
On June 2, 2006, defendant met Diego Carpio in a parking lot when he asked her for directions. During their conversation, defendant asked Carpio to cash a check for her. He agreed to do so and deposited defendant’s check for $3,000 in the bank, giving her $2,500 in cash, apparently the maximum he could withdraw. He then agreed to cash another $3,000 check for defendant at a different bank, giving defendant another $2,500. When they met the next day, Carpio intended to repay defendant the $1000 difference between the checks she had written him and the money he had given her thus far. Defendant, however, asked Carpio to cash another check, and he did so.
This pattern repeated itself over the next few days until Carpio had deposited a total of $14,500 in checks written by defendant and withdrawn $12,500 in cash, which he gave to defendant. Eventually, Carpio was unable to withdraw money from an ATM machine and learned of a problem with his checking account. Carpio (who, by this point, was finally suspicious), called defendant and asked her to meet him. When she did so, she asked Carpio to cash yet another check. Defendant and Carpio went into the bank, and Carpio told a teller that defendant was “stealing [his] money” and asked that the police be called.
Officer Frank Indelicato of the Irvine Police Department answered the call at the bank. Indelicato spoke with Carpio, who summarized what had occurred. Defendant, after waiving her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, admitted to Indelicato that she had written the checks on a closed account. She stated she knew it was illegal to write a check with insufficient funds.
On June 30, 2006, Jorge Norman (Norman) was introduced to defendant by his son, Jorge, Jr., (Jorge Jr.). Norman did not speak English, so Jorge Jr. interpreted for them. Norman agreed to cash checks for defendant “as a favor” because she did not have the required documents to cash her own checks. Defendant gave Norman two checks for $2,000 each, which he deposited in the account he held jointly with his daughter, Ximena. Norman withdrew half the money and gave it to defendant. A few days later, defendant gave Norman another check for $2,000, which he again deposited. Defendant gave Norman another check for $1,500, but he did not deposit it because he learned from the bank that defendant’s checks were bouncing.
Norman’s daughter, Ximena, was alerted to some activity with the account. She spoke with her father, who told her he had deposited checks from a woman. Norman gave her the phone number defendant had provided him. She called the number and spoke to a woman. The woman Ximena spoke to admitted the checks had been written on a closed account and asked for some time to pay Norman back before calling the police, but Ximena declined to do so.
The Orange County District Attorney charged defendant with two counts of grand theft (Pen. Code, § 487, subd. (a)) and three counts of passing nonsufficient funds checks (Pen. Code, § 476a, subd. (a)). After a jury found her guilty on all counts, defendant was sentenced to four years in state prison.
II
DISCUSSION
Norman’s Testimony
At trial, Norman testified that he did not speak English and that he relied on his son to translate his conversations with defendant. He testified at trial through an interpreter. Jorge Jr.’s primary language was Spanish, but he speaks English as well. Defendant objected to all of Norman’s testimony on the grounds that improper foundation had been laid to establish the reliability of the son’s translation. The court overruled defendant’s hearsay and foundation objections. The jury was given a special instruction, telling them that it was up to them to decide how much weight to give Jorge Jr.’s interpreted statements.
Defendant now argues that Jorge Jr.’s statements, as testified to by Norman, were impermissible hearsay. As this is an evidentiary issue, we review the trial court’s decision for abuse of discretion. “As a reviewing court, we must draw all legitimate inferences in favor of the implicit determination of the magistrate that the two translators were sufficiently skilled and unbiased so that the translated statements fairly could be attributed to the declarants. [Citations.]” (Correa v. Superior Court (2002) 27 Cal.4th 444, 467 (Correa).)
We squarely reject defendant’s argument that the admissibility of hearsay is reviewed de novo. Defendant cites People v. Alvarez (1996) 14 Cal.4th 155, arguing that case supports the proposition that the admissibility of hearsay is reviewed de novo. The court, in fact, states: “[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. Specifically, it scrutinizes a decision on a motion to bar the introduction of evidence as inadmissible hearsay for such abuse: it does so because it so examines the underlying determination whether the evidence was indeed hearsay. [Citation.] It follows that it gives the same level of scrutiny for the same reason to the passing on a hearsay objection.” (Id. at p. 203.) The court goes on to find that the trial court “did not abuse its discretion by denying defendant’s motion to preclude, as inadmissible hearsay. . .” certain testimony. (Ibid.)
With respect to the hearsay and foundational issues, our Supreme Court has held that we do “not treat the participation of a translator in such circumstances as interposing a layer of hearsay. Rather, a generally unbiased and adequately skilled translator simply serves as a ‘language conduit,’ so that the translated statement is considered to be the statement of the original declarant, and not that of the translator.” (Correa, supra, 27 Cal.4th at p. 448.) “The language-conduit theory calls for a case-by-case determination whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker.” (Id. at p. 457.) The court adopted the approach discussed in U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 526 (Nazemian).
The Nazemian approach suggests four factors should be taken into account: 1) which party supplied the interpreter; 2) whether the interpreter had any motive to mislead or distort; 3) the interpreter’s qualifications and language skill; and 4) whether actions taken subsequent were consistent with the interpreted statements. (Nazemian, supra, 948 F.2d at p. 527.) These questions are readily answered. The “party” that supplied the interpreter was Norman, and there is no evidence or suggestion that he had a motive to mislead or distort. Defendant argues it is “possible” that Jorge Jr. may have had such a motive, but a mere possibility, without any facts to support it, does not establish an abuse of discretion. Moreover, the only bias defendant suggests is bias in her own favor, pointing out that Jorge Jr. introduced Norman to defendant and asked Norman to help her.
Further, while defendant questions Jorge Jr.’s language skill, there was, in light of his sister’s testimony, sufficient evidence of his English skills. Despite defendant’s arguments to the contrary, there is no question that the material actions relevant to defendant’s crime were consistent with the interpreted statements. There was sufficient evidence that Norman cashed the checks as a favor because defendant lacked sufficient documentation. Even if, as defendant now claims, Norman thought he was to receive some cash back from defendant at a later date, the evidence was sufficient to support that defendant intended Norman to cash the checks.
The overriding consideration here is whether “the translated statement fairly may be considered to be that of the original speaker.” (Correa, supra, 27 Cal.4th at p. 457.) Nothing in the record suggests that the material facts relevant to defendant’s crime were interpreted improperly — specifically, that defendant asked that Norman cash checks she knew to be drawn on insufficient funds. We therefore find no evidentiary error. Because Jorge Jr. was acting as a language conduit, Norman’s statements were not hearsay, and there is no issue with respect to the Sixth Amendment.
Ximena Norman’s Testimony
Defendant next argues that Ximena’s testimony was flawed with respect to whether a sufficient foundation was laid that defendant was the person Ximena spoke to on the telephone. As the proponent of the proffered evidence, the prosecution had the burden of producing evidence to support the existence of the preliminary fact, namely, that defendant was a party to the telephone conversation. (Evid. Code, § 403, subd. (a)(4).) The evidence is not admissible unless the trial court finds the evidence was sufficient to sustain a finding of the existence of the preliminary fact. (Evid. Code, § 403, subd. (a).) On appeal, we review the trial court’s finding for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1167.)
Although not overwhelming, the evidence here was sufficient. The identity of a party to a telephone call may be established by proof of recognition or by other evidence which satisfactorily identifies the individual. (People v. Hess (1970) 10 Cal.App.3d 1071, 1078.) While defendant argues vigorously that Ximena did not identify the person she was speaking with, she ignores the fact that the identity of a party to a telephone call can be established by other means. Here, there was testimony that defendant gave Norman a telephone number, which he passed on to Ximena, and told Ximena that he had cashed checks given to him by a woman. Ximena called the number and confronted the woman who answered the phone, and her responses made it immediately clear that the identity of the person on the phone was the same person who had given Norman the checks — specifically, defendant. This was a sufficient foundation to show that defendant was the other party to Ximena’s phone call. We therefore find no error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.