Opinion
A124125
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. DANELL PRATT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC062612)
Danell Pratt appeals from convictions of attempted murder. He contends the trial court erred in admitting evidence of phone calls he made from jail. He maintains the calls were inadmissible hearsay and admission of this evidence violated his constitutional rights to confront witnesses and to due process. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on December 13, 2006, with two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a).) It was alleged in connection with each count that appellant personally and intentionally discharged a firearm and proximately caused great bodily injury to the victim (§ 12022.53, subd. (d)), and that the offense was a serious felony (§ 1192.7, subds. (c)(8), (c)(9)). It was further alleged that appellant had suffered a prior serious felony conviction (§ 667, subd. (a)) that constituted a strike (§ 1170.12, subd. (c)(1)) and for which he served a prior prison term (§ 667.5, subd. (b)).
All further statutory references will be to the Penal Code unless otherwise specified.
Appellant pled not guilty and denied the special allegations on December 15, 2006. Trial was initially set for March 26, 2007, but was continued a number of times for a variety of reasons. In early 2007, appellant was tried and convicted of unrelated charges, resulting in an 18-year prison sentence.
Trial on the present charges began with in limine motions on December 1, 2008. On December 12, 2008, the jury found appellant guilty as charged and found the firearm discharge allegations true. Appellant waived jury trial on the prior conviction allegations, and the court found them true. On February 13, 2009, the court denied appellant's motions for a new trial and to dismiss his prior strike conviction. Appellant was sentenced to consecutive terms of seven years to life for each of the counts of attempted murder, with the base term doubled (§ 1170.12, subd. (c)(1)), plus terms of 25 years to life for each of the section 12022.53 enhancements, for a total of 78 years to life. The court ordered the 18-year sentence imposed on appellant's 2007 conviction to run consecutively to the current sentence, making appellant's total sentence 96 years to life.
Appellant filed a timely notice of appeal on February 24, 2009.
STATEMENT OF FACTS
A little after midnight on December 25, 2005, 17-year-old Alfredo Gutierrez and his 15-year-old brother, Aaron, were talking in the living room of their home on Laurel Avenue. They had been carrying Christmas presents to their house from their grandfather's house next door, and the door was still slightly open. As Aaron was sitting on the couch against the wall and Alfredo was standing near the television, the door swung open and someone came in and pointed a gun at Aaron's head. The person pulled the trigger but the gun did not shoot; he backed up a little bit and Alfredo tried to move in front of Aaron. As he moved, the gunman shot him multiple times in the chest, abdomen, ribs and arms, then shot Aaron multiple times in both legs and in his scrotum. Aaron spent about a month in the hospital and Alfredo about six weeks. Both Alfredo and Aaron recognized the shooter at the time and identified him at trial as appellant.
As many of the individuals discussed in this opinion are relatives who share surnames, first names will be used for convenience in reading. No disrespect is intended.
Appellant and his identical twin brother, Lanell, lived with their grandmother a couple of houses away from the Gutierrez family; Alfredo and Aaron had known them their whole lives and used to spend time at their house playing with their younger cousin. Alfredo testified that he could tell the twins apart by their facial expressions and their eyes: appellant looked "more aggressive" and " 'meaner,' " and Lanell looked "a lot more mellow." Aaron testified that he had always been able to tell the twins apart. Alfredo and Aaron's mother, Carmen Gonzalez, testified that she could tell the difference between the twins once she started to know them, explaining that "you note face expressions" or "hear them talk." She testified that her family referred to the "good twin" and the "bad twin"; appellant was the "bad" one because he did not respond to neighborly greetings.
Both Alfredo and Aaron testified that immediately after the shooting, they told their mother and the police that the shooter was "Twin." Their mother, Carmen Gonzalez, testified that just after the shooting Aaron referred to the shooter as "Twin" and Alfredo referred to him as "Drew." Alfredo testified that "Twin" was "Drew," pointing to appellant. At some point during the investigation, Aaron told the police that they called the shooter "Twin" but when the twins were together they called him "Drew." Alfredo testified that appellant was known as "Drew," and Lanell as "Twin," when the twins were together, but when they were not together, both were called "Twin." Aaron knew both twins as "Twin" and also knew appellant as "Drew."
Carmen's brother, Andres (Andy) Gonzalez, also testified that just after the shooting Alfredo told him "Twin" had done it. Although Andy knew both appellant and his brother as "Twin," he immediately thought of appellant because he had spoken with appellant when he ran into him outside the house at about 10:00 or 10:30 p.m. on December 24, 2005. He had not seen appellant in a few years and was surprised to see him. Andy had had far more contact with appellant than with Lanell over the years, but he had "no problem" telling them apart and was "100 percent certain" it was appellant he saw that night. He told the police Alfredo had said "Twin" shot him.
La Trisha Payne, whose cousin was married to appellant, testified that both appellant and his brother were called "Twin" and, if they were together, "Twin One" and "Twin Two." Janet Lee, who knew appellant through his wife, knew him as "Danell" and "Twin." Janelle Carter, who knew appellant through his wife, wrote a letter to court on his behalf in a different case in which she referred to appellant as "Twin."
Alfredo told the police that the shooter, Twin, had longer hair than his brother. Aaron told the police that the shooter had a "fade" haircut, meaning "short, but you can still tell that he has hair," "maybe a little shorter" than appellant's hair at trial.
Aaron testified at the preliminary hearing that the shooter was wearing a black "hoodie" sweatshirt. Both he and Alfredo testified at trial that the shooter did not have a hoodie pulled up over his head and scrunched tightly around his face; both were able to clearly see his face and hair. Detective Jerry Alcaraz, who investigated the case, testified that neither of the victims, nor anyone else, ever told him the shooter was wearing a black hoodie over his head and scrunched tight around his face.
Carmen testified that between 11:00 and 11:15 p.m. on December 24, 2005, she noticed someone standing by her car, went out to check, and recognized appellant. Aaron testified that about 20 or 30 minutes before the shooting, as he was walking out of his grandmother's house, he noticed appellant across the street.
After the shooting, Carmen ran outside screaming for help. She saw someone crossing the street "at a fast pace" and going into the Pratt house. She told the first police officer who arrived what she had seen and he said, "Lady, the kind of gun that he has, he would make a strainer out of me."
Detective Alcaraz responded to the scene about 50 minutes after midnight on December 25, 2005, after the victims had been transported to the hospital. He was informed that one of the Pratt twins might be a suspect, "possibly the twin that was not bald." Back at the station, Alcaraz found the most recent booking photographs of the twins, appellant's from January 2003 and Lanell's from May 2003. He put Lanell's photograph in a lineup "because of information that I had received about the hair." At about 2:00 a.m., Alcaraz showed this lineup to Andy Gonzalez, asking him to identify anyone he recognized, and Andy identified Lanell. Andy testified that he circled the photograph he thought was of the person he had seen on the street that night, and that it was hard to tell the twins apart in photographs.
Alcaraz then went to the hospital and showed the photographs to Alfredo, who was unable to talk but pointed to one of them. Alfredo testified that he thought this was the person who had shot him, although at trial he recognized it as a photograph of Lanell. The photo array contained a photograph of only one of the twins. Alfredo told Detective Alcaraz that he could not tell the difference between the twins in photographs.
At this point in the investigation, Alcaraz suspected that Lanell had committed the shooting. Alcaraz had not shown anyone a photograph of appellant. He contacted Lanell's parole officer and, at about 10:00 p.m. on December 25, received a message from County Communications to call Lanell Pratt at (408) 903-8972. When he called this number, a person who identified himself as Lanell Pratt asked if Danell Pratt had been shot. This led Alcaraz to believe he should include Danell in his investigation.
Over the next days, Alcaraz attempted to reach both Pratt brothers. On December 28, he received a call from appellant's wife and asked her to have appellant call him. He did not hear anything from appellant. On January 3, 2006, Alcaraz met Lanell at his parole officer's office. He later spoke with Lanell's wife, mother-in-law and father-in-law, to confirm what Lanell told him. He also made an additional photo lineup containing appellant's booking photograph.
On March 10, 2006, Alcaraz showed the photo array containing Lanell's photograph and another six-photo array containing Danell's photograph to Aaron and asked him to point to anyone he recognized. Aaron picked the twins from their respective arrays, but was not able to say which of the twins had shot him, explaining that he could not distinguish them in photographs and would have to see them in person. Alcaraz then showed Alfredo the array containing appellant's photograph. Alfredo recognized appellant, but could not tell from the photographs which of the twins was the shooter and, like Aaron, thought it might help to see them in person.
Appellant was arrested on July 11, 2006. On October 11, Alfredo and Aaron each viewed a color photo line-up with both Pratt brothers in one six-photo array. Both boys recognized both of the twins, but were unable to distinguish which was the shooter; both were sure they would be able to tell the twins apart in a live line-up. A live line-up was conducted subsequently at which Alfredo, Aaron and Carmen each separately reported their identifications to the police. Alfredo and Aaron each identified number 3 as the shooter immediately upon being asked, and with 100 percent certainty. Carmen was asked who she recognized and indicated numbers 3 and 8. She was "very positive" that appellant was the person she had seen by her car half an hour before the shooting.
Carmen accidentally circled number 8 on her form but meant to circle number 9.
At the preliminary hearing, Alfredo and Aaron each identified appellant as the shooter without hesitation. Alfredo testified that after the preliminary hearing, the police told him that the person he had first identified, Lanell, had an alibi in that he was with his family at the time of the shooting. Aaron was told by the district attorney that Lanell had an alibi but he did not remember when.
Neither Alfredo nor Aaron had any idea why the shooting occurred. Alfredo testified that he never had problems with the Pratt family while growing up. Aaron testified that on one occasion within months of the shooting, when he was at the Pratt house, "Twin" (appellant) told him he did not want him in his yard, saying "something about 'Your family is a snitch,' or 'You guys are snitching, I don't want you in my yard.' " Aaron testified that he had never in his life sold marijuana and this incident had nothing to do with marijuana.
Alfredo testified that there was drug dealing on his street. He had never sold or consumed drugs, seen anyone selling drugs in front of his house or coming to his house to buy drugs, or seen anyone in his family selling drugs. Nor had Alfredo ever seen Andy go to the Pratt house, observed any problems between Andy and the twins, discussed Andy with the twins, or told either of the twins to leave the neighborhood. Alfredo testified that he had never threatened appellant, owned a gun or walked around East Palo Alto exhibiting a gun, and that it would not be "smart" for someone of his age and race to carry a gun because that part of town was "run more by the blacks."
Aaron testified that he had never consumed drugs and, to his knowledge, no one in his house was doing drugs. He saw people selling drugs at the corner every day, but he had never seen anyone who lived at his or his grandfather's house selling drugs, seen anyone selling drugs in front of his house, seen anyone come to his house to buy drugs or seen anyone in his house doing drugs. He had never seen his uncles buying or selling drugs.
Carmen testified there was a lot of "traffic" and people hanging around in front of the Pratt house. She was not aware of any drug dealing at her house or her father's, and her family participated in an anti-drug program with the police department.
Andy acknowledged that he had had a drug problem, had one conviction for possession of drugs, and was currently participating in a drug treatment program. He had purchased cocaine from appellant "a lot," as well as from others at the Pratt house. He denied ever having sold drugs, observed drugs being sold from his or Carmen's homes, or observed Alfredo or Aaron doing drugs. He also denied ever having had an argument or fight with Lanell, carried a gun, or told Alfredo he was going to kill either of the Pratt twins. Andy testified that had never seen anyone other than blacks selling drugs on the street in the area of his parents' house.
Detective Alcaraz, who had patrolled the neighborhood where the shooting occurred frequently, testified that the drug trafficking in this area was conducted by African Americans; Alcaraz had never been aware of Hispanics selling drugs in this area. He had made more than 50 calls at the Pratts' house, and none at the Gonzales', prior to the shooting. Another police officer with experience in the drug trafficking culture of the neighborhood similarly testified that in 2005, it was predominantly run by African Americans and in particular the Pratt family. Hispanics were not involved in drug trafficking there and a Hispanic who tried to sell drugs on the street in that area would likely be shot.
Sheriff's Lieutenant Ed Barberini testified that he searched appellant's cell at the San Mateo County jail on August 1, 2006, as part of a routine random search for contraband and indications of safety problems. He identified exhibit No. 22 as a photocopy of a four-page handwritten note he found in appellant's cell, addressed to "Ken" and signed "Danell." The letter stated: "my P.I. came to see me and he was telling me that in the shooting case they never I.D. me they I.D. Nell. . . . They never said in any of the report what I had on. I had on my green army thermo dark blue jeans and black nikes on. Remember this! I told him I was at Raymond Michell house with they family because they was cooking for their brother dodee was over there. I'm going to need you to go to Raymond house and tell him that they P.I. might stop by his house and tell him everything I'm telling you. I was at his house around 8 to 830 pm and I stayed there intil 11 or 11:15 pm when you picked me up. We went to Redwood City to get a drink (a fifth of yak) and we went back to your house and we chilled at your house, I said azaila. I didn't want to say tammy's, but I stayed intil the next day. If he ask you about Christmas . . . with me intil nine or so and I drop him off at a one his friend's houses. Make sure you go talk to Raymond and tell Raymond to tell his wife just in case but he knows already so it shouldn't be a problem but I don't want the P.I. going over there and he get caught off guard! It's a trip how they picked Nell and got me." Later, the letter states: "they can't charge Nell because they already charged me. So that's double jeopardy and it's a done deal. . . . Raymond be home around . . . so make sure you tell him or let him read this letter and tell him I was at his house at that time I didn't leave intil you came! And what I was wearing that's it. That's all and tell his wife the same thing. . . . Thanks, I owe you big time! . . . Tell Nell the P.I. will call him soon. Don't worry he is not go get in trouble. I went to the law library yesterday and they can't charge him and they can't refile on either of us. So tell him don't worry!"
Kennedy McGraw testified that he had known appellant for over 20 years and called him "Drew," but heard others refer to him as "Twin." He identified exhibit No. 22 as a copy of a letter he received from appellant in August 2006. After receiving this letter and having a telephone conversation in which appellant described some of the same details, McGraw told defense investigator Brian Vierra that he had been with appellant on the evening of December 24, 2005, and provided details consistent with what was described in the letter. In fact, McGraw testified, on the evening of December 24, he spent about two hours with appellant, beginning at about 7:30 p.m., and then did not see him again until the next morning. When the police first came to talk with him, McGraw confirmed that he had told Vierra he was with appellant all night, then when confronted with the copy of the letter he had received, McGraw admitted he had lied. McGraw testified that he was trying to help his friend and that he had no idea where appellant was after he dropped appellant off on the evening of December 24, 2005.
Defense investigator Brian Vierra testified that McGraw told him he had picked up appellant at 11:00 or 11:15 p.m. on December 24, 2005, drove him to a liquor store, and then to McGraw's home on Azalea, and socialized with appellant for the evening until he took appellant back home the next day. Vierra knew that Lanell had an alibi.
Detective Alcaraz testified that McGraw initially told him that the details in Vierra's report were accurate. When Alcaraz told McGraw about the contents of the letter, McGraw gave a different statement that was consistent with his testimony at trial.
Recordings of seven calls made from the county jail to Lanell's cell phone in August and October 2006 were played for the jury. All the calls began with the announcement, "You are receiving a free call from an inmate at a correctional facility." The caller, "Drew," asked the recipient, often referred to as "Nell," to get Raymond Meacham's cell number for him and said, "I mean, Ken, if Ken don't do it, I just, I just, it's a backup plan know what I mean? I don't just want to be assed out cause my PI, because that's where I say I was headed the night it happened." The caller asked "Nell" to call the defense investigator, saying he "just want a character witness" and "they don't even know who did the shit . . . they don't know us apart . . . you got an alibi and they, they put it on me so it's double jeopardy they can't charge you with anything." In the next call, the caller told "Nell" not to call the investigator and said, "I gotta get my alibi though. That's the only thing. That's why I need someone to talk to Ray. [¶] . . . [¶] . . . just tell him what I said blood. Or call Ken and ask Ken what to do. Ken tell you. That's all you gotta do man. The obvious thing is just, I was there at like 8:30, like I was. That's it." The caller said, "You just stay out the way. Let me handle it."
Attorney Geoffrey Carr testified that he had represented Lanell "in cases involving his brother" for 15 years and could not tell the difference between them. Defense
Appellant testified that he had known the Gonzalez family about 12 years and sold drugs to Andy in 1996 or 1997, but not since then. He testified that in his neighborhood, African Americans sold drugs at "street level" and Hispanics were the "middle man" distributors of "big packages," but there were some Hispanics who sold at street level. He denied that the Pratt family ran the drug trade in the neighborhood.
Appellant disclaimed ever having had any argument or dispute with Alfredo or Aaron. He remembered the incident Aaron described in which he made Aaron leave his grandmother's front yard, but testified that he just told Aaron to leave because Aaron was selling marijuana in front of their house. According to appellant, in the years preceding the shooting, Alfredo had been "getting big-headed . . . getting a little money in the neighborhood, so he started acting like he was the man." About two weeks before the shooting, Alfredo came to the Pratt house and told appellant "he didn't want nobody getting killed over this, and if he didn't leave the neighborhood, he'd wind up with a bullet in the back of your head." Appellant told Alfredo he had gotten him confused with his brother because appellant did not sell drugs. Alfredo told him, "I know who you are. Just get out of the neighborhood." Appellant had seen Alfredo with a gun about a year before the shooting.
Appellant told Lanell about the conversation with Alfredo, and Lanell said, "The hell with Alfredo. I'm going to get that son of a bitch." Lanell said Andy had sold him some fake drugs and said he was going to "shoot the balls of Aaron" and kill both Alfredo and Aaron. Appellant told Lanell he did not want to have anything to do with this. In another conversation, Lanell told appellant, "I'm really going to get that Freddy. You better get your alibi together because my wife's family is going to provide an alibi for me, and it's going to be Christmas at midnight, so you better get your alibi set for that time."
Appellant testified that at around midnight on December 25, 2005, he was at his grandmother's house, where he had been since 10:15 p.m., when his friend Ken McGraw dropped him off. He went to his grandmother's because she said she was lonely and wanted him to spend Christmas with her, and Lanell also wanted him to spend time with her. Lanell was not there when appellant arrived, but came in around 11:15 p.m. and then left again about 11:30 p.m. Lanell was wearing dark clothing and, as he left, he put on a hoodie, leaving the hood hanging on the back. He was not gone long and when he returned the hoodie was pulled over his head and tied tight, so that appellant could see only his eyes and nose, not enough of his face to tell who he was. Lanell then left again, hurriedly, saying, " 'if the police come looking for me, I'm not here.' "
Appellant heard sirens and looked out the front door to see police cars, woke his grandmother, went outside and asked a neighbor standing next door what had happened. She told him she thought the "two younger brothers" got killed. Appellant thought the neighbor meant Alfredo and Aaron and thought, "Whoa. Maybe my brother had something to do with this." Appellant returned to his grandmother's house, left through the back door, and drove to San Jose. He testified that he did not know whether his brother had anything to do with what happened and he "didn't want to be accused of it." As he was driving, he called his brother, said someone had been shot at Andy's house, and asked if Lanell had anything to do with it. Lanell said he knew and "I'm just telling you now just to get an alibi. . . . I'm on my way to my alibi and you better get one because mine is airtight."
A couple of days later, Lanell called and told appellant, "you better get your alibi together." About the shooting, Lanell said Andy had "ripped him off for some drugs" and he was "getting him back." Lanell told appellant six or seven times to get an alibi, but appellant did not take him seriously until appellant was arrested. He wrote the letter to Ken that was found in his cell in order to create an alibi for himself because he was being charged with something he did not do. In addition to Lanell, the defense investigator told appellant he needed to "work on your alibi," and appellant's lawyer also talked to him about an alibi. Appellant's lawyer told him that Lanell had an alibi and that this "affected me deeply because if my brother had an alibi, then most likely they would put the focus on me." Appellant testified that in the recorded calls from jail to Lanell, he was trying to set up an alibi for himself, but Lanell did not help him. Lanell told appellant he would "come and take care of this for me if it got too heavy for me," but he had not done so.
Appellant did not know where Lanell was at the time of trial and testified that he had been unsuccessfully trying to reach him. On cross-examination, he denied wanting Lanell to stay away so the jury would not be able to see that they were in fact distinguishable in person. Although he was aware that Lanell had moved to Alabama with his wife and her parents, appellant had not tried to find their number through a directory. He claimed to have asked his mother to contact Lanell and get him to come to court to take responsibility for the case, but appellant did not ask her where Lanell was, try to contact Lanell's wife, or ask the defense investigator to try to find Lanell. He acknowledged that he never told the defense investigator there was a potential issue between Lanell and the victims.
Appellant testified that while the physical lineup was being prepared, he told the officer in charge, Sergeant Schofield, that everyone should be wearing black hoodies and Schofield said, "if you tell me that again, you'll be going to the hole." He said he asked for the lineup participants to wear hoodies because the preliminary hearing indicated the victims claimed to have seen someone in a black hoodie, but he acknowledged that the victims did not refer to the hoodie covering the shooter's face. Sergeant Schofield denied threatening appellant and did not recall appellant asking for the participants to wear black hooded sweatshirts.
Schofield described the procedures he followed in arranging lineups, including having the defendant pick the participants and ensuring the participants were dressed alike and did not display identifying marks that would distinguish between them.
Appellant acknowledged on cross-examination that he had been convicted in June 2007 of rape of an intoxicated minor, in 1999 of discharging a firearm in a grossly negligent manner that could result in injury or death of a person, and in 1993 of misdemeanor assault against a police officer. He was aware that Lanell had been arrested for drugs several times, but otherwise disclaimed awareness of Lanell's criminal history when asked about Lanell having been convicted of resisting arrest in 2003, inflicting injury on a child in 1997, battery with serious bodily injury in 1996, and possession of crack cocaine in 1993.
Appellant testified that he was "sometimes" known as "Twin," and that in the family, he was known as "Drew" and Lanell was known as "Nell." Only the family and a few very close friends called appellant Drew; the Gutierrez and Gonzalez family did not. In December 2005, he wore his hair "bald," meaning cut to the skin, as depicted in a photograph taken in May 2006, five months after the shooting. Alcaraz subsequently testified that in a photograph of appellant taken on June 22, 2005, six months before the shooting, by other officers in connection with a different case, appellant was not bald but rather had hair on the top of his head.
DISCUSSION
Appellant contends the queue report and recorded calls he made from jail to Lanell were inadmissible hearsay and their admission violated his constitutional rights to confrontation and due process. Prior to trial, the prosecution filed a motion to admit appellant's statements contained in the recorded calls as well as in the letter to "Ken." The prosecution urged that appellant's statements tended to show that he, rather than Lanell, committed the shootings, and that appellant was seeking assistance in creating an alibi. Defense counsel argued that the material violated appellant's rights to privacy and to prepare for trial, and that jail phone calls relating to an inmate's case are privileged as attorney-client communications and work product. The prosecutor countered that recording jail telephone conversations is not a violation of privacy as long as there is notice the calls would be recorded, and that none of the proffered calls were to appellant's attorney or other agent of the defense.
The court granted the motion to admit the evidence, specifically overruling defense objections based on attorney-client or work-product privilege, and on relevance "to the extent that . . . objection was made by the defense and not just raised by the court . . . ." The court rejected defense counsel's argument that the letter found in appellant's cell during a search for contraband, which did not indicate it was intended for appellant's attorney or other defense agent, should not have been seized.
During trial, the prosecution called Hussein Nava, the site administrator for Global Testings Phone System, who maintained the inmate telephones and telephone system at the Maguire Correctional Facility and the recordings of calls made from the jail. Nava testified that as soon as an inmate picked up a telephone, the "cam system" would begin recording; the recorded calls could be searched in various ways, including by phone number, called by holding cell or housing unit, or by particular phone used. A placard on the jail telephones states that calls are monitored and recorded, and during a call the inmate would hear a computer generated voice saying the call is being monitored and recorded. A law enforcement request for recorded calls would go first to the sheriff's office, then, if approved, to Nava. Nava would enter the information requested, such as the dates and phone number called, into an application that would bring up the results, then use the same application to transfer the requested calls onto a CD. In addition to the calls themselves, the CD would contain a text file called a "queue report."
Nava identified exhibit No. 32A as the queue report generated with the recorded call for this case. He testified that the CD containing the calls and queue report, exhibit No. 32, was prepared by Tom East, Nava's predecessor in the job at the prison. Nava had access to all of East's records for the phone system.
When the prosecutor began to question Nava about the information to be gleaned from the queue report, defense counsel objected that an adequate foundation had not been laid. The court found Nava had sufficient expertise to discuss the contents of the queue report because he took the place of the person who did the job when the report was generated. Nava testified that the queue report showed the location in the jail from which a call was made, the number being called, and the date, time and duration of the call. Nava knew that the queue report was associated with exhibit No. 32 because he had looked at the CD on a computer and saw that it matched the queue report. This was how he would normally handle requests for material from prior to his taking over the job from East.
On voir dire, Nava testified that he was not present when the recordings and paperwork under discussion were made. He did not have personal knowledge about the making of the tapes, but was trained to generate such reports and call records. Upon defense counsel's further foundation objection, the prosecutor elicited Nava's testimony that the records from the telephone calls at the jail were kept and maintained in the regular course of business, he had access to these records as the person responsible for maintaining and retrieving the calls, and he relied on the records to be reliable. The queue report appeared to be a document generated in the regular course of the business; it looked "the way that the system generates them" and "unaltered." The CD also appeared as the records were normally kept and maintained in the regular course of business.
Defense counsel at this point asked Nava if he knew from personal knowledge where the CD and queue report had been kept for the last couple of years and Nava said he did not. The prosecutor asserted that the business record exception to the hearsay rule had been established. Over defense counsel's objection that Nava was not the custodian of records, the court ruled that Nava qualified as custodian of records but suggested the prosecutor lay "a little more foundation with regard to authenticity" of the particular CD and queue report.
Nava then testified that, at the prosecutor's officer earlier that day, in the normal way he would view retrieved records from the security phone system, he put exhibit No. 32 into a computer and saw that the contents matched the queue report. The documents reflected phone calls from the county jail to phone number (408) 903-8972 between June 3 and October 5, 2006. Nava testified that the documents were generated in response to a request from law enforcement, received on November 2, 2006, for calls to that phone number. Because the phone system does not identify the person making a call, Nava could not do more than testify that the tape accurately reflected the numbers on the queue report. The CD had been given to the prosecutor by East and Nava first saw it, as well as the queue report, in the prosecutor's office on the day he was testifying. Over defense counsel's objection, the court held a sufficient foundation had been laid for the business records exception to the hearsay rule.
Detective Jerry Alcaraz authenticated the transcript of the recorded jail calls (exh. No. 32B), the calls were played for the jury, and exhibit Nos. 32A and 32B were introduced into evidence.
The court instructed the jury that the content of the CD was the evidence, not the transcripts, but the record reflects that both the CD and the transcripts were admitted into evidence.
Under the business records exception to the hearsay rule, "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271.) We review the trial court's ruling under the business records exception for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 308.) A trial court's discretionary decision " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' (People v. Jordan (1986) 42 Cal.3d 308, 316.)" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Appellant contends the queue report and recorded calls did not come within the business records exception to the hearsay rule because Nava was not a custodian of records in that he was not present when the CD and queue report were made and had no personal knowledge regarding their generation; he did not and could not testify as to the identity and preparation of the specific report and CD being introduced (Evid. Code, § 1271, subd. (c)); and his lack of personal knowledge precluded him from establishing the trustworthiness of the evidence (Evid. Code, § 1271, subd. (d)). Appellant asserts that Nava had no way to know whether the queue report and CD were actually given to the prosecutor by West or were created by the prosecutor on her own computer. He further argues the queue report could not qualify as a business record because it was prepared in anticipation of litigation and not at the time the calls were made (Evid. Code, § 1271, subd. (b).)
We are not persuaded that the trial court erred. In Cooley v. Superior Court (2006) 140 Cal.App.4th 1039 (Cooley), upon which appellant relies, the plaintiff in a civil suit served a subpoena on the district attorney for records produced by other entities regarding the incident underlying the suit, for which the defendant was also being criminally prosecuted. The material was sought by means of a business records subpoena, which requires an affidavit from the custodian of records stating, among other things, that the records were prepared contemporaneously and in the ordinary course of business. (Evid. Code, §§ 1560, 1561.) Because the district attorney's office did not "prepare or generate" any of the documents sought, it could not attest that they were "prepared in the ordinary course of business at or near the time of the event," " 'state the "identity" or "mode of preparation" of the records' " or " 'show that "[t]he []sources of information and method and time of preparation" of the records indicate their trustworthiness. [Citation.]' " (Cooley, at p. 1045.) As a result, the district attorney was not a custodian of the records sought. (Ibid.; quoting Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1706 (Taggart).)
Taggart found reports of safety tests conducted on motorcycle helmets inadmissible under the business records exception to the hearsay rule. The custodian of records' affidavit met the requirements of Evidence Code section 1561, but at that time section 1561 did not require a statement regarding the identity or mode of preparation of the records or a showing that the sources of information and method and time of preparation indicate trustworthiness. (Taggart, supra, 33 Cal.App.4th at p. 1706.) Those missing elements were required for the hearsay exception, so the affidavit was insufficient to support admission under Evidence Code section 1271. (Taggart, at pp. 1706-1707.)
Appellant relies upon Cooley and Taggart for the proposition that a witness can qualify as a custodian of records only if he or she has personal knowledge regarding the generation, preparation and production of the records produced. But "Evidence Code section 1271 does not require that the person who gathered the information contained in a record testify as custodian of that record. [Citations.] 'It is the object of the business records statutes to eliminate the necessity of calling each witness, and to substitute the record of the transaction or event. It is not necessary that the person making the entry have personal knowledge of the transaction. [Citations.]' " (People v. Matthews (1991) 229 Cal.App.3d 930, 940, quoting Loper v. Morrison (1944) 23 Cal.2d 600, 608-609.) Here, although Nava did not himself generate the particular CD and queue report at issue, he was able to describe exactly what these items were and how they were prepared in the ordinary course of business because he now performed the very same functions as did the person who preceded him in his job at the prison and generated these items. "[A] person who generally understands the system's operation and possesses sufficient knowledge and skill to properly use the system and explain the resultant data, even if unable to perform every task from initial design and programming to final printout, is a 'qualified witness' for purposes of Evidence Code section 1271." (People v. Lugashi (1988) 205 Cal.App.3d 632, 640.)
Lugashi involved evidence of fraud gleaned from printed copies of computer generated records of certain bank transactions. The employee who produced and maintained the records described the means by which the transaction information was generated and recorded, and interpreted the records, although she was not personally responsible for performing each operation required in generating the records. The court rejected the defendant's argument that this witness lacked sufficient knowledge to explain the computer records, and that no evidence was offered on the reliability of the computer system. ( People v. Lugashi, supra, 205 Cal.App.3d at pp. 637, 640.)
Appellant argues the queue report cannot qualify as a business record because it was generated after the calls were made, in anticipation of litigation, and not "at or near the time of the act, condition, or event." (Evid. Code, § 1271, subd. (b).) He cites Melendez-Diaz v. Massachusetts (2009) _ U.S. _, 129 S.Ct. 2527, 2538, which held that the business records exception to the hearsay rule does not encompass documents kept in the regular course of business "if the regularly conducted business activity is the production of evidence for use at trial." The documents at issue in Melendez-Diaz were affidavits reporting the results of forensic analysis that determined the substance seized from the defendant was cocaine. These affidavits did not qualify as business records because they were " 'calculated for use essentially in the court, not in the business.' " (Id. at p. 2538, quoting Palmer v. Hoffman (1943) 318 U.S. 109, 114.) Melendez-Diaz explained that records created specifically for use at trial are testimonial and therefore inadmissible absent confrontation. (Id. at pp. 2539-2540.) If the evidence here was testimonial, Nava's testimony would not satisfy appellant's right to cross-examine the person who actually generated the evidence. (See Bullcoming v. New Mexico (2001) 564 U.S. _, 131 S.Ct. 2705; People v. Loy (2011) 52 Cal.4th 46, 69.)
Unlike the evidence at issue in Melendez-Diaz, here there can be no question that the recordings of the calls themselves were made in the ordinary course of the business of the prison. Nava testified that every time an inmate made a call, the call was automatically recorded. This contemporaneous recording of all calls made by inmates was part of the ordinary routine of the prison, presumably serving administrative and security concerns and not solely for the purpose of litigation. The queue report was generated when the computer system was searched for specific calls and served to identify those calls, indicating for each call the location in the prison from which the call was made, the phone number called, and the time, date and duration of the call. Although the queue report itself was not made contemporaneously with the calls being recorded, it reflected information collected by the computer system at the time each call was made. And while the CD containing recordings of the calls and queue report in the present case were generated in response to a request from law enforcement, all Nava's predecessor did to generate the CD and queue report was to specify parameters by which the computer could search its existing records and gather the requested information. This was not new evidence created for purposes of litigation but simply a means of organizing and identifying existing information collected in the ordinary course of business.
In any event, to the extent there was any error in admitting the queue report and recorded calls, appellant was not prejudiced. The import of the jail calls was that appellant was attempting to fabricate an alibi, thereby suggesting he was in fact guilty of the shootings. But this point was even more powerfully established by the letter found in appellant's jail cell. Not only did the letter unambiguously demonstrate an attempt to create an alibi, but its recipient, Kennedy McGraw, testified that he initially told the defense investigator and police a story consistent with what was detailed in the letter and then, when confronted with the letter, confirmed that his former story was untrue and in fact he was not with appellant at the time of the shooting. In the face of this letter and testimony, exclusion of the jail calls could not possibly have resulted in a more favorable verdict for appellant.
Appellant attempts to avoid this conclusion by suggesting that he gave a reasonable explanation for wanting to create an alibi despite being innocent—that Lanell had an alibi and this focused attention on appellant. He emphasizes Alfredo and Aaron's initial identification of Lanell in the first photographic lineups they were shown, and argues they did not identify him until after they were told Lanell had an alibi.
The only real issue in this case was whether appellant or Lanell was the shooter. The prosecution explained what it presented as the mistaken initial identification of Lanell with evidence that it was difficult to tell the twins apart in photographs. Aside from that initial identification, the prosecution evidence against appellant was strong: Both victims testified that they could distinguish the twins in person and that they recognized appellant at the time of the shooting. Evidence from other family members supported the boys' testimony. The only evidence that Lanell was the shooter came from appellant, and his credibility was repeatedly challenged by the prosecution.
Most importantly, appellant's arguments do not undermine the significance of the letter with regard to potential prejudice from the jail calls. The explanations appellant offered for his attempts to create an alibi applied to both the letter and the jail calls; there was no suggestion that either of these examples of attempts to create an alibi was for a purpose distinct from the other. Even without the jail calls, the jury had clear evidence that appellant attempted to manufacture an alibi and had to decide whether to believe his explanation or the prosecutor's for why he did so. Appellant suggests no reason the evidence of the jail calls would have caused the jury to reject the explanation he offered if it believed that explanation with respect to the letter.
For the reasons we have just described, it is clear that any error in admitting evidence of the jail calls was harmless beyond a reasonable doubt. Accordingly, we need not consider the merits of appellant's argument that admission of this evidence violated his constitutional rights to confront witnesses against him and to due process.
The judgment is affirmed.
Kline, P.J. We concur: Haerle, J. Richman, J.