Opinion
G031130.
10-16-2003
THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE RODRIGUEZ, Defendant and Appellant.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Juan Jose Rodriguez guilty of simple possession of methamphetamine. The court determined Rodriguez had suffered four prior strike convictions in 1990 and one prior prison term conviction. Rodriguez was sentenced to a prison term of 25 years to life. On appeal, Rodriguez asserts his punishment is cruel and unusual, and violates the double jeopardy clause of the state and federal Constitutions. In addition, he claims his case must be reversed because: (1) a crucial witness was deported; (2) the court erroneously excluded that witnesss confession to the crime; and (3) the court held a bench trial rather than a jury trial on his strike priors. Finding the claim of evidentiary error mandates reversal, we need not consider the other issues raised.
Facts of the Crime
While on patrol late one evening, Santa Ana Police Officer Matthew Brown drove past Rodriguez and Joshua Maciel standing together on the sidewalk near the driveway of an apartment complex. Suspecting criminal activity, Brown returned to the location and saw Rodriguez run and hide behind a Toyota Tercel parked in the driveway. At the same time, Brown saw Maciel calmly walk straight backwards, get out his cell phone, and make a call. The officer recalled Maciel never got closer than 10 or 15 feet to the Tercel.
Brown parked and with a spotlight saw Rodriguez briefly look out from his hiding spot behind the Tercel. Rodriquez complied with the officers request to come forward and sit on the sidewalk with Maciel while the area was searched. Brown looked underneath the car with his flashlight and noticed a small plastic bag. It was underneath "the middle" of the car, which was "about an arms reach from the north side of the car" where Rodriguez had been hiding. The bag contained four grams of methamphetamine. Rodriguez and Maciel were both arrested.
Maciels Confession
At the preliminary hearing, Brown testified he interviewed Maciel at the jail. Maciel waived his Miranda[] rights and told the officer he had smoked methamphetamine a few hours before his arrest. He said he began using methamphetamine after losing his job two weeks earlier. He stated the plastic bag found under the car did not belong to him, and he did not know Rodriguez. He claimed they just happened to be standing in the same driveway. The officer noted the 19 year old seemed nervous during the interview.
Miranda v. Arizona (1966) 384 U.S. 436.
When he was finished questioning Maciel, Brown took him outside of the interview room and brought 31-year-old Rodriguez inside. After questioning Rodriguez, Brown came out of the room and was surprised to see Maciel approach him and ask if they could speak again. Brown returned to the interview room with Maciel, where he told Brown that as a juvenile he had been addicted to crack cocaine but had "kicked his habit." He admitted that he owned the pipe found in his jacket, and the bindle of methamphetamine belonged to him. He said he put the bindle underneath the car before Brown saw him. When asked why he had not admitted these facts earlier, Maciel claimed he had never been asked. Brown asked him several questions about the bindle of drugs, but Maciel was unable to accurately describe the picture of bowling balls printed on one side of the plastic bag.
EXCLUSION OF MACIELS CONFESSION
Before trial, Rodriquez requested permission to introduce into evidence Maciels confession because Maciel was an unavailable witness. His counsel explained that the defense investigator, Mario Maldonado, questioned Maciel after learning he had made incriminating statements to the police. Maciel made the same admissions to the investigator. Maldonado testified that in May 2002, he served Maciel with a subpoena to appear at Rodriquezs trial. However, soon thereafter, Maciel was transferred to the Theo Lacy facility and immediately deported to Mexico. Maldonado contacted Maciels mother, who said she thought he was still in California. However, Maldonado checked the Los Angeles County jail system and was unable to find him. The records of the Orange County jail system indicated Maciel was in Mexico. Maldonado stopped his search for Maciel by the end of May 2002. He noted that in the ensuing two months before trial, he knew defense counsel had periodically contacted the jails to look for Maciel but was unable to find him. The prosecution argued the evidence should be excluded as unreliable and untrustworthy. The court, without stating a reason, excluded the evidence.
At sentencing, defense counsel advised the court that Maciel was back in the United States. Defense counsel stated she knew Maciel had been arrested and charged with a new felony. She requested a continuance so that she could file a motion for new trial. When asked what would be the basis for a new trial, counsel acknowledged that Maciels counsel will likely advise him not to testify which would make him, once again, unavailable. The court refused to grant a continuance.
DISCUSSION
Any testimony relating Maciels postarrest statements, admitted for the truth of those statements, would be hearsay. "Unless it falls within an exception to the general rule, hearsay is not admissible. [Citation.] `The chief reasons for this general rule of inadmissibility are that the statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarants demeanor while making the statements. [Citations.]" (People v. Duarte (2000) 24 Cal.4th 603, 610.)
"In California, `[e]vidence 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, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. [Citation.] The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarants penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Duarte, supra, 24 Cal.4th at p. 610.)
Having been deported, Maciel was certainly unavailable. In the months before trial, neither the investigator nor defense counsel were able to find him. Moreover, it cannot be disputed Maciel made a declaration against his penal interest. He told a police officer that he was a drug user, he had ingested methamphetamine just hours before his arrest, and the four grams of methamphetamine found under the car belonged to him. In short, he confessed to the crime for which he and Rodriguez were placed under arrest. No aspect of his declaration could be considered self-serving. The only question, therefore, was whether Maciels declaration was otherwise "sufficiently reliable to warrant admission despite its hearsay character." (People v. Duarte, supra, 24 Cal.4th at pp. 610-611.)
"`To determine whether [a particular] declaration [against penal interest] passes [Evidence Code section 1230s][] required threshold of trustworthiness, a trial court "may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarants relationship to the defendant." [Citation.] We have recognized that, in this context, assessing trustworthiness `"requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception." [Citation.]" (People v. Duarte, supra, 24 Cal.4th at p. 614.) Applying the abuse of discretion standard, we find the court erred by determining the confession was not sufficiently reliable to warrant admission.
All further statutory references are to the Evidence Code.
We note the court did not explain the basis for its ruling on the record. We presume it was persuaded by the prosecutions argument that Maciels confession was untrustworthy because he had previously denied ownership of the bindle. The Attorney General suggests there are other reasons to find the declaration unreliable. We will address these contentions separately.
First, the Attorney General asserts the court properly relied on the fact Brown "found the confession unworthy of belief." However, we did not find such evidence in the record cites provided by the Attorney General or after independently reviewing the entire record. Rather, we discovered Brown never offered an opinion on the reliability of the confession. Although, he admitted he was surprised when Maciel asked to speak with him again, Brown never indicated that he was suspicious about Maciels motivation for confessing. Thus, contrary to the Attorney Generals contention, there is simply no evidence presented from which the trial court could have inferred Brown disbelieved the confession. And, in any event, the police officers personal lay opinion on veracity would have been irrelevant and deemed inadmissible evidence.
(See People v. Melton (1988) 44 Cal.3d 713, 744-745; People v. Smith (1989)
214 Cal.App.3d 904, 915 [sheriff should not have been allowed to testify that he believed victims dying declaration].)
The Attorney General also maintains there was evidence "Maciel did not tell Brown the bindle was his until after he was apparently threatened or coerced by appellant." This is an interesting theory, but it also lacks any factual support in the record.[] It was not raised by the prosecution as part of its objection to Rodriquezs request. We found the matter was briefly discussed at the preliminary hearing. There, defense counsel argued there was no reason to believe Rodriguez put "Maciel up to it." And, he had evidence to support this argument: Brown testified Rodriquez and Maciel sat together on the sidewalk for perhaps only 30 seconds and were then transported in separate cars to the jail. When asked if he heard the two men converse, Brown replied, "No, I dont allow people to speak." The men were interviewed separately and, when asked about their association, they both denied knowing each other. As noted above, Brown did not speculate as to why Maciel changed his mind and decided to confess to the crime. Based on this record, there was no reason to infer Maciel was bullied into confessing. And, because there was no reason to doubt the evidence showing the men were unacquainted, we cannot think of another plausible motive for Maciel to willingly take the blame for a crime he did not commit.
To support this contention, the Attorney General refers only to a portion of the presentence report prepared by the probation department. The probation officer reported that Brown believed Maciel was intimidated by Rodriquez and was lying in order to "save face" in front of him. In the same section of the report, the probation officer notes that his "synopsis of events is taken from police records and may not exactly reflect testimony given at trial." Indeed, we found no evidence was presented at the preliminary hearing or at trial indicating Maciel was coerced or intimidated by Rodriguez to make the confession.
We find the fact Maciel initially professed to be innocent, standing alone, does not render his later confession inherently unreliable. The instinct to deny culpability is understandably a part of human nature. However, once having claimed innocence, a reasonable person in Maciels position ordinarily would not confess to a crime (especially to a police officer) unless he believed it to be true. (See § 1230.) As noted above, there does not appear in the record to be any other plausible motivation for a false confession.[]
Perhaps Maciel, having previously "kicked" his cocaine habit, decided it was time to seek help and directly deal with the consequences of his new methamphetamine habit.
The Attorney General suggests exclusion of the testimony caused no prejudice because if it had been admitted the prosecution would have introduced evidence about the initial denial, "the suspicious nature of any confession, and appellants threats." In addition, the Attorney General suggests any error was harmless because "there was overwhelming evidence" that the bindle belonged to Rodriguez.
We are unaware of any legal authority suggesting "any confession," particularly an apparently voluntary confession, should be viewed with "suspicion." Moreover, as noted above, the notion Maciel was threatened is nothing more than speculation. We find the evidence connecting Rodriguez to the bindle was slim. He was not seen previously holding the bag or caught tossing it under the car. The drugs were found centered under the middle of the car and not immediately next to where Rodriguez chose to hide.
Admission of Maciels statements certainly may have tipped the scales in Rodriguezs favor. Maciel said he put the bindle under the car before Brown arrived, which could explain why Brown did not see how the drugs got there. Maciel admitted he uses methamphetamine daily, which logically connects him to the kind of drugs found. Being under the influence of methamphetamine, it is reasonable that he could not recall the picture printed on the baggy, but still knew the bag of drugs he hid under the car belonged to him. The fact he made no attempt to flee does not necessarily suggest innocence, but rather the action of someone who knows his drugs are safely hidden. Indeed, Maciel cleverly distanced himself from the drugs when he saw the police. Rodriguez who was on parole, and described by a court appointed psychiatrist as being intellectually slow, understandably ran from the police (and closer to the drugs).
Accordingly, the judgment is reversed. Although we need not consider the other issues raised on appeal, we feel compelled to remind the trial court that all defendants charged under the "Three Strikes" law are entitled to have a jury consider the prior conviction allegations pursuant to section 1025. (People v. Epps (2001) 25 Cal.App.4th 19, 29.)
WE CONCUR: SILLS, P. J., ARONSON, J.