Opinion
G048951
12-27-2016
THE PEOPLE, Plaintiff and Respondent, v. JAMES ELLIOTT LARA, JR., and DAVID GONZALES LARA, Defendants and Appellants.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant James Elliott Lara, Jr. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant David Gonzales Lara. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. BAF1100313) OPINION Appeal from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed as modified. Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant James Elliott Lara, Jr. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant David Gonzales Lara. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
This case is before us for the second time, after the California Supreme Court vacated our original opinion and ordered us to reconsider it in light of their recent decision in People v. Conely (2016) 63 Cal.4th 646 (Conely). We now conclude Conley requires a different result on one issue, but affirm our prior opinion in all other respects.
The Riverside County District Attorney charged David Gonzales Lara (David) and James Elliott Lara, Jr., (James) with carjacking and unlawfully taking or driving a motor vehicle. James was separately charged with possession of methamphetamine, receiving a stolen car, and being a participant in a criminal street gang. It was alleged James had served one prior prison term and had two prior serious or violent felony convictions within the meaning of the "Three Strikes" law. David was separately charged with making a criminal threat, and it was alleged he personally used a knife during the carjacking, served one prior prison term, and had one prior serious or violent felony conviction within the meaning of the Three Strikes law.
A jury convicted James of possession of methamphetamine, receiving a stolen car, and unlawful taking or driving a car. He was found not guilty of carjacking and active participation in a criminal street gang. David was convicted of carjacking and making a criminal threat. However, the trial court declared a mistrial as to the knife-use enhancement allegation. Both defendants admitted the truth of the prior strike allegations. The trial court sentenced James to a total term of 26 years to life. David was sentenced to a total term of 20 years and four months.
David claims the trial court improperly admitted statements James made during two recorded telephone calls James made from jail. As stated in our original opinion, we find no merit in David's claim of evidentiary error. David also argues Penal Code section 654 (all further statutory references are to this code) prohibits the imposition of punishment for both carjacking and making criminal threats. The Attorney General concedes the issue, and we again modify and affirm the judgment against David accordingly. Finally, David concedes Conley has no application to his appeal.
James raised one issue on appeal. He argued this court must remand his case for a new sentencing hearing in light of Proposition 36, The Three Strikes Reform Act of 2012 (Reform Act), which became effective while his appeal was pending. We originally agreed, so we reversed and remanded for resentencing as to James. However, Conley clearly dictates the opposite result so we now affirm the judgment against James.
FACTS
In May 2011, David purchased Dennis Zimdorf's boat. David took his brother, James, to Zimdorf's home one morning to get the boat. Charles Alvarado, a 62-year-old heroin addict and convicted felon who knew James and David, was also at Zimdorf's home. Alvarado drove James to a nearby liquor store so that James could attempt to sell some pills. After James's unsuccessful attempt at this, Alvarado drove him back to Zimdorf's home, parked in front of the house, and then waited for his friend, Matt Berry, to come outside.
James got out of Alvarado's car and had a brief conversation with David. Then both David and James returned to Alvarado's car. James grabbed Alvarado's keys and cane, and he told Alvarado that David needed to talk to him. David approached the driver's side window with a small pocket knife. He repeatedly told Alvarado to get out of his car, and poked the knife at Alvarado's face. At one point, David said, "I ought to stab you. I ought to stab you." Then he said, "Maybe I'll just shoot you in the leg." David asked James if there was a loaded gun in the car, and James said there was. David accused Alvarado of owing some money to a woman, but Alvarado denied owing the money.
Alvarado got out of his car and retrieved his cane from James. Alvarado started to walk along the side of the house and David followed him. David asked for Alvarado's phone number so he could call when Alvarado got the money David claimed Alvarado owed. Although it is unclear how long Alvarado was away from his car, when he walked back to the street, it was gone, as were David, James, and James's car. Alvarado told Zimdorf his car had been stolen and called 911. Zimdorf later testified he saw Alvarado's car and a red truck driving away from his house.
Riverside Sheriff's Deputy David Granito responded to Alvarado's call and took his statement. Alvarado told Granito that he saw his car being driven away and that it was followed by a truck. Alvarado did not identify James and David initially because he did not want to get them into trouble. He also told the officer he had left his car unlocked with the keys in the ignition. Alvarado did not mention that David had threatened him with a knife, and threatened to kill him. He also did not initially tell the officer why he gave James a ride to the liquor store.
Later that day, James asked a woman friend if he could leave a car at her home, and he pointed to Alvarado's car. Days later, the woman saw sheriff's deputies take Alvarado's car away.
On June 2, 2011, police officers arranged to have Alvarado call James. During their recorded conversation, James told Alvarado that he took Alvarado's car to prevent David from shooting him. James was arrested the next day. He gave a statement to police that essentially confirmed Alvarado's account. James admitted hearing David threaten to shoot Alvarado, and he knew David carried a gun. James also admitted driving Alvarado's car while David drove James's truck. James claimed he asked Alvarado for $150 ransom for the car because he needed to give the money to David.
During the interview James admitted possessing methamphetamine. He voluntarily gave the officers a bindle containing .89 grams of methamphetamine. James also made several telephone calls from jail. In one recorded call to his mother, James said he and David went to get the boat at Zimdorf's house when Alvarado showed up. James told his mother that David said something about Alvarado "talking shit" about him, and that James felt compelled to support David. As James said, "that's how it all started." James also called an unidentified male and claimed David said he was "gonna fuck him up" when Alvarado arrived at Zimdorf's home. Again, James told his friend he felt the need to support David. James claimed David was "tellin' everybody that fuckin,' fuckin' Jimbo, oh, this and that. Nah, it was his fuckin' stupid, fuckin' bi-polar ass."
DISCUSSION
Although David and James were tried by different juries, the trial court permitted the district attorney to introduce evidence of the two telephone calls James made from jail at David's trial. In one call, James told an unidentified male that he felt pretty good because "Dave [said] he's gonna take this charge off of me." James explained that David had been angry at him at first because James was supposed to just help him pick up a boat. When "Charlie" drove up, David decided to "fuck him up" and James thought, "So here I go, all right, I got your back, you know, and that's how it all . . . [¶] . . . [¶] [s]tarted." He repeated the story in another call to his mother, claiming that he and David went to get a boat, but when Charlie dove up, David decided to do something to Charlie, and James said, "[a]ll right, well I got [your] back and that's how it all started mom."
Relying primarily on Aranda, supra, 63 Cal.2d 518 and Bruton, supra, 391 U.S. 123, David claims the trial court committed evidentiary error by admitting the out-of-court statements of his codefendant. David also discusses Crawford v. Washington (2004) 541 U.S. 36 (Crawford) because the out-of-court statements in question implicated David in the crimes, and James was not able to cross-examine James.
Although Crawford mentioned Bruton (Crawford, supra, 541 U.S. at p. 57), it never expressly overruled or acknowledged that its decision in any way replaced Bruton. Nevertheless, dictum in Crawford strongly suggested the Confrontation Clause no longer applied to nontestimonial statements. (Crawford, at pp. 60-61.) Indeed, a long line of subsequent state and federal cases, including decisions by the United States Supreme Court itself, have expressly ruled Crawford eliminated confrontation clause protection for nontestimonial statements. (People v. Arceo (2011) 195 Cal.App.4th 556, 575 (Arceo) ["[T]he confrontation clause applies only to testimonial statements"]; People v. Gutierrez (2009) 45 Cal.4th 789, 812 ["Only the admission of testimonial hearsay statements violates the confrontation clause"]; Whorton v. Bockting (2007) 549 U.S. 406, 420 [ Crawford eliminated "Confrontation Clause protection against the admission of unreliable out-of-court non-testimonial statements"]; Davis v. Washington, (2006) 547 U.S. 813, 821 [only testimonial statements "cause the declarant to be a 'witness' within the meaning of the Confrontation Clause"].) In short, the Confrontation Clause is violated only by "the admission of testimonial hearsay statements." (People v. Loy (2011) 52 Cal.4th 46, 66.) James made statements to an unknown male and his mother during recorded telephone calls from jail. Although David submits "[i]t is reasonable to assume from [James's] criminal history and employment as a paid confidential police informant" knew he was being recorded and used this knowledge to shift responsibility to David, we are not persuaded by this assertion.
James had been advised his jail telephone conversations may be recorded, but the mere fact the jail at times records inmate telephone calls in no way transmutes James's casual remarks to his mother and an acquaintance during two such calls into testimonial hearsay statements. (See, e.g., People v. Loy, supra, 52 Cal.4th at pp. 66-67.) As noted in People v. Cervantes (2004) 118 Cal.App.4th 162, 174, when it is not reasonably anticipated that a statement would be used at trial, the "statement was not testimonial within the meaning of Crawford." There is simply no evidence that when James made the statements in question here that he did so in anticipation his statements would be used at trial. As noted in Arceo, supra, 195 Cal.App.4th at pp. 571-572, "[T]he confrontation clause has no application to out-of-court nontestimonial statements [citations], including statements by codefendants. [Citations.]"
With respect to the trial court's ruling, Evidence Code section 1230 provides: "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, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
James was unavailable and his statements were clearly against his penal interest. Thus, the statements were admissible under Evidence Code section 1230 so long as they were found sufficiently trustworthy. We believe they were. Nothing in the commission of the crime or James's conversations suggests he is particularly adroit at subterfuge. David's suggestions to the contrary are nothing more than mere speculation, unsupported by any evidence in the record. Under the facts presented here, the trial court was entitled to conclude, under a totality of the circumstances, that James's statements, although made while in custody, were trustworthy and admissible.
But even if the evidence was improperly admitted, its admission was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [erroneous admission of statements by a non-testifying codefendant in violation of Bruton, supra, 391 U.S. 123]; see also People v. Duarte (2000) 24 Cal.4th 603, 618-619 [evidence admitted in violation of Evidence Code section 1230 analyzed under harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836].) Alvarado identified David as the person who threatened him and took his car. He also explained James's role as David's aider and abettor, a role James admitted in both telephone calls. David points to Alvarado's history of substance abuse, inconsistencies in the statements he gave police after the crimes, and other weaknesses in his testimony, to assert prejudice. But these are questions involving witness credibility and evidence examination, roles properly performed by the jury. In sum, we agree with the Attorney General. James's statements merely corroborated other evidence of David's guilt. Considering the substantial corroborating evidence admitted at trial, any error in admitting James's statements was harmless beyond a reasonable doubt.
2. Proposition 36
The judgment of conviction was entered on November 3, 2011. On January 6, 2012, the trial court denied James's motion to strike his prior felony conviction for sentencing purposes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced him to a total term of 26 years to life. The court selected count 6, the vehicle theft, as the principle term and imposed 25 years to life as required by the Three Strikes law. The court then imposed a consecutive one-year term for James's service of a prior prison term. The court imposed a concurrent 25-years-to-life term for count 3 and stayed sentenced on count 4 pursuant to section 654.
On November 6, 2012, the voters passed the Reform Act, which now limits Three Strikes sentences to current convictions for serious or violent felonies. (§§ 667, subd. (e)(2)(C); 1170.12, subd. (c)(2)(C).) Proposition 36 reformed the Three Strikes law in two ways: (1) Under Proposition 36, with certain exceptions, a third strike conviction must be for a serious or violent felony (See §§ 667, subd. (e), 1170.12, subd. (c)); and (2) Proposition 36 added section 1170.126 to the Three Strikes law. Section 1170.126 provides a resentencing option for "persons presently serving" a Three Strikes sentence of 25 years to life, whose sentence under the Proposition 36 reforms would not have been a life sentence. (§ 1170.126, subd. (a).) Under section 1170.126, the defendant "may file [in the trial court] a petition for a recall of sentence" to request resentencing under Proposition 36; and, if the person is eligible, the trial court will resentence the person "unless the court, in its discretion, determines that resentencing the [person] would pose an unreasonable risk of danger to public safety." (§ 1170.126, subds.(a), (b), (e), (f), (g).)
James urged this court to remand his case for automatic resentencing under the amended penalty provisions of the Reform Act, and we agreed. However, in Conley, the California Supreme Court ruled Proposition 36 "authorized defendant and others similarly situated to seek resentencing under the recall provisions of section 1170.126, but they did not intend to confer a right to automatic resentencing under the amended penalty provisions of the Reform Act." (Conley, supra, 63 Cal.4th at pp. 661-662.) Thus, under Conley, Proposition 36 does not entitle James to automatic resentencing. Instead, James is entitled to petition the trial court for discretionary resentencing, and to have that petition heard on its merits. (Conley, at p. 662, fn. 5.)
3. Section 654
David argues the trial court improperly imposed separate sentences for counts 1 and 2. Specifically, he asserts the carjacking and criminal threat were committed with the same intent and objective. The Attorney General concedes the issue. We accept the concession and modify the judgment accordingly.
DISPOSITION
The judgment against David is modified to stay sentence imposed for count 2, making criminal threats, pursuant to section 654. The clerk of the superior court is directed to modify the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment against David is affirmed. The judgment against James is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton).