Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR71104
RAYE , J.A deadly weapon was concealed in a sweatshirt resting on the console between five-time felon Randall Mesker and his passenger, three-striker John Dufault, when the police stopped them for a traffic violation. The investigating officer saw defendant Mesker, the owner and driver of the car, handling the sweatshirt as the officer approached the car. Appealing his conviction for possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)), Mesker contends the trial court abused its discretion and curtailed his constitutional right to present a defense by disallowing admission of a purported affidavit by Dufault claiming the weapon was his. We cannot say the trial court abused its discretion by disallowing admission of what it believed was an inherently untrustworthy document. We also conclude defendant has no constitutional right to present hearsay evidence that does not meet the threshold requirement of trustworthiness. The judgment is affirmed.
FACTS
Only two witnesses testified at trial. One of the investigating officers testified that he and his partner stopped defendant after observing him run a stop sign and noticing a large crack in his windshield. As the officer approached the car, defendant was moving and handling a wadded-up sweatshirt lying on the console between the driver’s and passenger’s seats. Upon request, Dufault handed the sweatshirt to the officer. The officer found throwing stars and a knife with a pistol grip in the pocket. The sweatshirt fit defendant but was too short for Dufault.
Nancy Tonnemacher testified for the defense. She claimed the sweatshirt belonged to one of her ex-boyfriends and the throwing stars and knife were hers. She explained that Dufault, a parolee, was living with her and asked her to remove the weapons from the house. She left them in the sweatshirt on her dresser. In a call from the jail, Dufault informed her he had taken the sweatshirt and had been arrested for possession of the weapons. Tonnemacher was an old friend of defendant and had pled guilty to possession of methamphetamine for sale.
The defense sought admission of an affidavit purportedly written by Dufault on February 6, 2007, stating that “the throwing knives and pistol shaped knife officers found in a sweatshirt in the car were in fact mine and Randall Mesker had no prior knowledge of them being there. I told officers this at the scene as it is true and correct. I make this statement as fact under penalty of perjury under no duress or intimidation.”
The prosecution objected to the admission of the affidavit and reported the results of its investigation into the document’s authenticity. The prosecution stated that a special agent for the California Department of Corrections (CDC) interviewed Dufault about the declaration he purportedly signed. Dufault denied he had written the declaration and claimed defendant was attempting to transfer blame to him. The agent also determined that the CDC number attributed to Dufault in the affidavit was incorrect; in fact, that CDC number belonged to another inmate in a different facility. Dufault signed an affidavit stating under penalty of perjury that he had not signed the original declaration.
The same investigator interviewed another inmate, John Graham, who allegedly had witnessed Dufault sign the original declaration. Graham told the investigator he did not see Dufault write the declaration, but he did see him sign it.
By the time of trial, Dufault had absconded from parole.
The trial court found that Dufault’s hearsay statement was unreliable based on a number of different stories the court considered. The court explained that there was “no evidence that that is in fact his signature other than the testimony of a felon who says he saw him sign it.” The court found it unlikely that Dufault, a three-striker, would sign the document and yet refuse to talk to defense counsel “because he was a three-striker” and “wouldn’t testify, period.” The court found it unnecessary to decide whether Dufault was unavailable within the meaning of Evidence Code section 1230 since even if he was, the evidence was inadmissible because it was unreliable.
DISCUSSION
Defendant asserts Dufault’s affidavit was admissible as a declaration against his penal interest, a recognized exception to the hearsay rule. 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.”
The proponent of evidence under the penal interest exception “‘must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’ [Citations.]” (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).) A statement is not reliable, and therefore admissible, solely because it is inculpatory. (Ibid.)
The issue presented is not whether the affidavit was against Dufault’s penal interest, for clearly if he made the statement it subjected him to criminal liability, but whether the trial court abused its discretion by finding the statement unreliable. Defendant, not the prosecution, bore the burden of proving the statement’s reliability. (People v. Duarte (2000) 24 Cal.4th 603.) Here reliability turned on authenticity. The trial court determined defendant had not demonstrated sufficient reliability to satisfy the court the affidavit was authentic. We cannot say the court’s determination constituted an abuse of discretion.
There is no litmus test for determining whether a statement against penal interest is sufficiently reliable. (People v. Greenberger (1997) 58 Cal.App.4th 298, 334.) The court can consider both the words themselves and the circumstances under which they were uttered. (People v. Cudjo (1993) 6 Cal.4th 585, 606-607 (Cudjo).) Live witnesses are not required. (People v. Carlin (2007) 150 Cal.App.4th 322, 334.)
The trial court considered the content of the affidavit and acknowledged that a felon was prepared to testify that although he did not see Dufault write the declaration, he did see him sign it. But the prosecutor made a compelling case that the affidavit was not reliable. She outlined the results of the investigation, including the significant fact that Dufault’s prisoner number on the alleged affidavit he prepared was erroneous. Moreover, Dufault reported to the investigator that he never made the statement, and he signed a declaration attesting to that fact. Finally, the court had the opportunity to compare the signatures on the two declarations and could reasonably conclude the two were not the same.
As a result, there were more than sufficient indicia to suggest to the court that the affidavit was not authentic or, at a minimum, to sustain the court’s finding the defendant did not meet the burden of proving it was reliable. On this record, we can find no abuse of discretion.
Yet defendant urges us to discard the deferential standard of review and decide the reliability issue de novo. In the absence of live testimony, defendant asserts the trial court did not have an inside view on credibility. Defendant offers no authority to support the notion that a reviewing court should usurp the trial court’s evidentiary rulings in the absence of live testimony. It is well established that the trial court’s determination whether a declaration passes the required threshold of trustworthiness is reviewed for abuse of discretion. (Cudjo, supra, 6 Cal.4th at p. 607.)
Defendant claims the court abused its discretion by failing to conduct an Evidence Code section 402 hearing and by rejecting Graham’s declaration because he was a felon. According to defendant, the court relied solely on “argument and surmise.” We disagree.
It is true the prosecutor encapsulated the results of the investigation in casting doubt on the authenticity of the Dufault declaration. As the Attorney General points out, it is not clear whether the investigator’s reports and Dufault’s second declaration were produced for the court during the in-chamber proceedings. It is clear, however, that defense counsel, who had seen the documents, did not object to the prosecutor’s representation of the contents.
The prosecutor’s argument was not based on surmise; it was based on the investigator’s reports and the affidavits before the court. That documentation cast serious doubt on the authenticity of Dufault’s alleged affidavit. While the court was certainly free to discount the veracity of the declaration of a felon and another inmate doing time with Dufault, the record does not support defendant’s insinuation that wholesale rejection of a felon’s testimony led the court to exclude Dufault’s affidavit. Rather, the court considered all the circumstances surrounding the alleged execution of an affidavit, including the relevant inference that it would be unlikely for an incarcerated three-striker to inculpate himself, use the wrong prison number, and use two different signatures in signing two different affidavits. These factors were all properly considered by the court and provided the context in which the hearsay statement was made.
Having found defendant did not sustain his burden of demonstrating the affidavit was sufficiently reliable to warrant its admissibility, we have little trouble in resolving his due process claim. “The general rule remains that ‘“the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.”’ [Citation.]” (Lawley, supra, 27 Cal.4th at p. 155.)
We agree with the Attorney General that the litany of cases cited by defendant, including Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297] and Green v. Georgia (1979) 442 U.S. 95 [60 L.Ed.2d 738], are distinguishable because the hearsay in those cases bore indicia of reliability, the very element missing here. Defendant insists the federal Constitution trumps the finding that the evidence was unreliable. Not so. While the defendant has a fundamental right to present a defense, that right does not trump state rules of evidence where, as here, he fails to sustain his burden of making a threshold showing of trustworthiness. In both Chambers and Green, the circumstances “provided considerable assurance of their reliability.” (Chambers, at p. 300.) As in People v. Dixon (2007) 153 Cal.App.4th 985, we do not have comparable circumstances providing any assurance of reliability. We adopt the same rationale explained in Dixon: “We conclude that the trial court did not abuse its discretion in finding Wallace’s statement to be untrustworthy and excluding it under California’s hearsay law. [Citation.] In addition, there is no constitutional error. The holding in Chambers is premised on a conclusion that the evidence was reliable. (See People v. Garcia (2005) 134 Cal.App.4th 521, 539 . . . [Chambers does not require admissibility of exculpatory statement when made under unreliable circumstances].) Wallace’s exculpatory statements were not inherently reliable and were properly excluded.” (Dixon, at p. 1000.) In short, defendant has no constitutional right to admission of fabricated documentary evidence.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J. CANTIL-SAKAUYE, J.