Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Super. Ct. No. KA075178, George Genesta, Judge
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Albert Raymond Paredes guilty of carjacking (Pen. Code, § 215), attempted second degree robbery (§ 211), and that he personally used a firearm in the commission of both crimes (§ 12022.53, subd. (b)). We affirm.
All statutory references are to the Penal Code unless stated otherwise.
FACTS
On April 12, 2006, between 5:00 and 5:30 p.m., Ulivaldo Chavez was preparing to leave home for work in his Chevrolet Blazer. He saw Paredes on the sidewalk. Paredes was wearing a hooded sweatshirt with the hood up. Paredes walked up to the driver's window and pointed a gun at Chavez. He told Chavez to get out of the Blazer or he would kill him. Chavez complied. Chavez could see Paredes clearly because the garage light was on. Paredes demanded Chavez's wallet, but Chavez ran away. Paredes drove away in the Blazer, and Chavez called 911.
Los Angeles County Sheriff's Deputy James Nash saw Chavez's Blazer in a parking lot near the La Puente Motel. Detectives arrived and waited in an unmarked car to follow the Blazer when it left. About an hour and a half later, the Blazer left. The detectives notified Nash who detained it and its occupants.
Victor Reyes was driving and Paredes was in the passenger seat. After detectives arrived, Nash interviewed Reyes and Paredes separately at the scene. Paredes originally told Nash that he did not know the Blazer was stolen. Nash said that Reyes told him he told Paredes the Blazer was stolen. Paredes replied that Reyes told him he took it from his uncle. Paredes suggested that his uncle may have reported it stolen.
During the interview, a telephone in the Blazer rang constantly. Nash answered it. A female voice asked, "'Who is this?'" Nash said it is "Rider." The caller identified herself as "Joy." She said, "'Tell my man Albert that there's some cops outside my motel room and I think they are looking for the G-ride that he's in.'" A "G-ride" is street slang for a stolen vehicle. Joy told Nash to tell Albert to "hurry up and dump it because the police were surrounding her motel room . . . ." Nash hung up.
Joy called back about three minutes later to ask whether Albert had dumped the car yet. She said the police were surrounding her motel and she did not want Albert to get "busted" in the car.
Nash later identified the caller as Joy Bennett. Bennett admitted she called Paredes's telephone and spoke to someone named Rider. Bennett also said Reyes told her the Blazer was stolen. Reyes said he got it from someone named Carlos, not his uncle.
Two days after the crime, Chavez identified Paredes from a six-pack mug shot folder. Chavez also identified Paredes at the preliminary hearing.
DEFENSE
Paredes's mother and a friend of his sister testified Paredes was home at the time of the carjacking.
Reyes testified he got the Blazer from a homeless person named Carlos. Carlos did not tell him it was stolen. Reyes did not know the truck was stolen until the police told him.
Kathy Pezdek, a professor of psychology, testified as an expert on eyewitness identification. She testified misidentification is likely when the exposure time is only a few seconds, where the perpetrator's head or face is partially covered by a hood, and where a weapon is used because the witness tends to focus on the weapon. Pezdek also criticized the photographic lineup because only one of the six men in the photographs was wearing a hooded sweatshirt.
DISCUSSION
I
Paredes contends he was denied the right to present a defense when the trial court excluded expert testimony.
Paredes's eyewitness identification expert, Pezdek, was prepared to testify about a "fairly new line of research." She said in 80 out of 120 cases in which the conviction was later proved wrong by DNA, eyewitness identification was the primary evidence. Under examination by the prosecutor, Pezdek said she was not comparing the sample "to the entire universe of all the people who were convicted." She said the conclusion is that, "[W]hen there's an erroneous conviction, the source to which that can be contributed is overwhelmingly eyewitness identification . . . ." She also stated, "We don't know how often wrongful convictions occur."
The trial court found testimony concerning the study would not assist the trier of fact. The court stated the number of cases included in the study was small, there is no information about the facts in those cases, and no information about what criteria was used to conclude eyewitness identification was the primary basis for the conviction. The court prohibited Pezdek from including the study in her opinion while testifying. The court's ruling was based on lack of foundation, relevancy, and Evidence Code section 352.
Evidence Code section 352 allows the trial court to exclude evidence if its probative value is outweighed by the probability its admission will necessitate an undue consumption of time or create a substantial danger of undue prejudice, confusion, or misleading the jury. The trial court has broad discretion in determining the relevancy of evidence and in determining its admission under section 352. (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v Garceau (1993) 6 Cal.4th 140, 177.)
Here the trial court did not abuse its discretion. The sample on which the study was based was limited to those cases in which the conviction was proven erroneous by DNA testing. Pezdek's conclusion from the study was also limited to cases "when there is an erroneous conviction." The study says nothing about cases, such as this one, where DNA testing has not proved the conviction erroneous. Pezdek admitted as much when she testified that she was not comparing the sample in the study to the entire universe of all people who were convicted.
Moreover, even if the trial court had erred, the error was harmless by any standard. It was hardly a coincidence that the person Chavez identified as the carjacker was found by the police riding in the stolen car. Even had Pezdek testified about the study, there is no reasonable doubt the jury would have found Paredes guilty.
II
Paredes contends he was denied the right to due process and confrontation of a witness by the admission of testimony about Bennett's telephone calls.
Bennett did not testify at trial. Instead, Deputy Nash testified about the contents of the telephone calls. Paredes objected to the testimony as hearsay and as a violation of the confrontation clause under Crawford v. Washington (2004) 541 U.S. 36. The prosecutor argued the statements are not hearsay, and if they are hearsay, they are admissible under the contemporary statement or excited utterance exceptions to the hearsay rule. The prosecutor also argued the contents of the telephone conversations should not be excluded under Crawford because the statements were not testimonial. The trial court overruled Paredes's objection.
"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to provide the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Paredes argues the contents of the telephone conversations are hearsay because they were admitted to prove the truth of the statements. The prosecutor argued to the jury that the statements made by Bennett show Paredes knew the car was stolen.
The question of the admissibility of telephone conversations typically arises in the context of police searches of residences of narcotics dealers. During the search, the police answer the telephone. On the line are people seeking to purchase drugs. The traditional view is that the content of the telephone calls is not hearsay because it is not offered to prove the truth of the statements made. (See People v. Nealy (1991) 228 Cal.App.3d 447.) People v. Morgan (2005) 125 Cal.App.4th 935, 945-946, rejected the traditional view. Morgan held that statements made in such telephone calls are hearsay, but admissible as an exception to the hearsay rule. The court stated, "The answer to the quandary created by nonassertive statements is not to distort the definition of the hearsay rule and ignore the reality that a request to buy drugs is only relevant if the buyer believes he can buy drugs with his request. The answer is to recognize that the increased reliability of nonassertive statements justify the recognition of an exception to the prohibition on the use of hearsay." (Id. at p. 944.) Under either theory, the statements made by Bennett were properly admitted.
Nor is there a violation of the confrontation clause. If the statements are not hearsay, they raise no confrontation clause concerns. (People v. Morgan, supra, 125 Cal.App.4th at p. 946.) If the statements are hearsay, they are inadmissible under Crawford only if they are "'testimonial'" in nature. (Ibid.) Statements made during police interrogations may qualify as testimonial. (Ibid.) But informal statements made in an unstructured setting, such as statements made by potential drug purchasers in a telephone call to a dealer's residence, are not testimonial. (Id. at p. 947.) Here the statements made by Bennett were not made during a police interrogation. Instead, they are the type of informal statements made in an unstructured setting that have been held not to be testimonial. (See ibid.)
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.