Opinion
C083006
06-11-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT RYAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-135502)
A jury found defendant guilty of numerous felonies related to the possession of a loaded firearm and methamphetamine. After defendant admitted to serving six prior prison terms, the trial court sentenced him to an aggregate term of 10 years in state prison. On appeal, defendant contends the trial court abused its discretion in refusing to admit the out-of-court statement of his codefendant, that his admissions were neither voluntary nor intelligent, and he is entitled to additional custody credit. We conclude there was no error and affirm the judgment.
I. BACKGROUND
A. Underlying Facts/Charges
While following up on routine probation searches, Roseville Police Officer Christopher Trudell saw a gold Buick SUV that he had not seen previously in the area. Three people were huddled near the front passenger door of the SUV. Officer Trudell approached the SUV and two of the people (later identified as defendant and Joseph Armas, defendant's nephew) walked away "fast" toward the front door of a nearby home; the third person remained near the SUV. A woman, Sabrina Puleo-Coats, was seated inside the SUV.
Officer Trudell's partner, Roseville Police Officer Jeremy Guess, stayed near the SUV, Officer Trudell followed defendant and Armas. Officer Trudell briefly lost sight of defendant and Armas as they walked around a car parked in the home's driveway; when he made contact with them, they were standing by the corner of the garage.
Two other Roseville police officers searched the SUV: Jennifer Bland and Jordan Haley. Officer Bland found a loaded .32-caliber revolver between the center console and the driver's seat. She also found a folded knife under a piece of cloth that was wrapped around the steering column. Officer Haley found a black bag behind the driver's seat. Inside that black bag, he found a black plastic bag that contained a "white powdery substance," later identified as 84 grams of dimethyl sulfone often used as a "cutting reagent with methamphetamine," and an electronic scale.
While Officers Bland and Haley searched the SUV, defendant sat on the street curb along with Puleo-Coats and Armas and Officer Trudell searched defendant and Armas's cell phones. On Armas's phone, Officer Trudell found a text message to defendant asking for the price of an "eight ball." Based on his experience, Officer Trudell knew an eight ball to be "3.7 grams usually of an illegal substance like methamphetamine."
Officer Trudell also searched a decorative pot situated between the corner of the garage and the front door of the residence. Between that pot and the residence itself, Trudell found a baggie containing approximately four grams of methamphetamine and a vial containing five Dilaudid pills. The baggie and vial were found in an area that was "dirty and dusty, a lot of cobwebs" but the items were "shiny, pristine, no dust, no dirt . . . like [they] had been recently placed" in that spot.
When asked, defendant initially said the SUV was not his, that he did not know anything about the vehicle. Defendant later said he had rented the car and showed Officer Trudell the rental agreement.
Officer Trudell asked Puleo-Coats, who was now seated in the back of the patrol car, why she was in the car with defendant. According to Officer Trudell's report, she gave the following statement in response: "She said he was giving her a ride to find her boyfriend . . . , who was in the area. She said her boyfriend lives in Redding but was in Roseville for an unknown reason. She said the black computer bag belonged to [her boyfriend]. She said the white crystalline substance in the bag was methamphetamine. She said the gun also came from that bag. She said she pulled the gun out of the bag and threw it. She said she thought she threw it out of the car.
"She said Ryan is trying to stay out of trouble and all the drugs and the gun found in the car was [sic] hers. Then she said it belonged to [her boyfriend]."
Officer Trudell also took a statement from Armas. Among other things, Armas told Officer Trudell he thought the methamphetamine belonged to defendant and that while he was sitting on the curb with defendant and Puleo-Coats, and before the officers found the gun, Armas "heard [defendant] give P[u]leu-Coats a que[ue] to take credit for the gun." Specifically, he reported that defendant asked Puleo-Coats, " 'Do you know anything about a gun in the car?' "
The People subsequently charged defendant with carrying an unregistered, loaded firearm, having a concealed firearm in a vehicle, being a felon in possession of a firearm, possession of a controlled substance (methamphetamine) with a firearm, transportation of a controlled substance (methamphetamine) for the purpose of sale, and possession of a controlled substance (methamphetamine) for the purpose of sale. The People further alleged that defendant served seven prior prison sentences and failed to remain free of prison for a period of five years, and was twice previously convicted of drug-related crimes.
The People charged Puleo-Coats as a codefendant with carrying an unregistered, loaded firearm and carrying a concealed firearm in a vehicle. B. Pre Trial/Trial/Verdict/Sentence
Defendant subpoenaed Puleo-Coats to testify at trial, but she failed to appear. Puleo-Coats's attorney advised the court that she was hospitalized and, if called to testify, she would invoke her Fifth Amendment privilege against self-incrimination. The trial court found Puleo-Coats was unavailable as that term is defined in Evidence Code section 240, subdivision (a)(1), (3), and (5).
Further undesignated statutory references are to the Evidence Code. --------
Defendant subsequently moved to have Puleo-Coats's hearsay statement to Officer Trudell admitted as a declaration against interest under section 1230, and as a party admission under section 1220. The People opposed the motion arguing the hearsay statement was not made admissible under section 1220 because it was not being offered as evidence against Puleo-Coats. The People also argued the hearsay statement was not made admissible under section 1230 because it was not trustworthy.
After taking the matter under submission, the trial court issued a written ruling denying defendant's motion. The court ruled the hearsay statement was not made admissible as a party admission because it was not being offered as evidence against Puleo-Coats. The court also ruled the hearsay statement was not made admissible as a declaration against interest because, in light of all the circumstances, the statement did not "meet the standards of trustworthiness . . . ."
In ruling the Puleo-Coats statement untrustworthy, the trial court noted discrepancies in the statement: (1) Puleo-Coats "essentially claimed" the gun and methamphetamine were hers, then said the computer bag belonged to her boyfriend; (2) she said the white powdery substance in the black bag was methamphetamine but it was not; (3) she said she threw the gun out of the car but the gun was found inside the car, "lodged" between the driver's seat and the console; and (4) Armas told Officer Trudell he overheard defendant trying to "cue" Puleo-Coats to take responsibility for the gun while they were sitting on the curb, before the gun was found.
Before trial, defendant also moved to bifurcate the trial on the seven prior prison terms alleged by the People. In addition, defendant's counsel advised the court that defendant wanted to have a court trial on those allegations. The following colloquy then took place: "THE COURT: Okay. So is that something we can absolutely define today, so that I can go ahead and take his waiver?
"[Defense counsel]: I believe so, yes.
"THE COURT: So again, it is really an issue for scheduling, [defendant], why I want to nail this down.
"As you know, on the allegations of your prior convictions and prior prison terms, you also have the right to a jury trial to have the prosecution prove those issues to the jury beyond a reasonable doubt.
"Do you understand that?
"THE DEFENDANT: Yes, Ma'am.
"THE COURT: Do you understand you have the right to have [your attorney] cross-examine the investigator from the district attorney's office who is going to come in with your prior record?
"THE DEFENDANT: Yes, Ma'am.
"THE COURT: You could bring any witnesses that you think would be helpful to your case, showing that you may or may not have all of those priors.
"THE DEFENDANT: Yes, Ma'am.
"THE COURT: You can testify yourself if you want to obviously, but you can't be forced to testify on those issues as well.
"THE DEFENDANT: Yes.
"THE COURT: Do you wish to give up your right to a jury trial only on the issue of your prior convictions and prior prison terms?
"THE DEFENDANT: Yes.
"THE COURT: We are going to proceed to court trial on those issues if you are found to be guilty on any of these counts. Thank you. I can note that for the record."
Following a four-day trial, the jury found defendant guilty of carrying an unregistered, loaded firearm, having a concealed firearm in a vehicle, being a felon in possession of a firearm, and being in possession of a controlled substance along with a firearm. The trial court declared a mistrial on the remaining possession and transportation charges.
Approximately three weeks after the jury reached its verdict, defendant appeared before the trial court to admit the prior prison term allegations. The trial court indicated the parties had discussed "different options," defense counsel laid out where they had "landed": "So what we had talked about was admitting to six prison priors. And then Count One, Two, and Three would be stayed pursuant to or this punishment would be stayed pursuant to Penal Code [section] 654. That there would be as to Count Four, which is Health and Safety Code [section] 11370.1[, subdivision ](a), that [defendant] would receive four years. He would admit to six prison priors, for a total of ten.
"And we also have what we think is the proper calculation for credits.
"THE COURT: Okay.
"[Defense Counsel]: And so we would admit—we would go forward with that. And I believe the district attorney agreed first of all not to retry on Counts Five and Six.
"[The Prosecutor]: That's correct."
The court clarified to which prison prior allegations defendant would be admitting then said the following to defendant: "So, [defendant], as you know, you have the right to a trial on these—the allegations of the prison priors. Previously you have waived jury trial on those rights, and so we set it then for a court trial. That is why we are here today.
"Counsel informs me at this time that you are willing to admit the six prison priors that we just went through. Is that correct?
"THE DEFENDANT: Yes, Ma'am.
"THE COURT: Do you have any question about your ability to go forward as to a court trial?
"THE DEFENDANT: No.
"THE COURT: So I am going to go through each one of these and ask if you admit or deny.
"THE DEFENDANT: Okay."
Defendant then admitted six of the seven prison priors alleged and the court sentenced defendant to an aggregate term of 10 years in state prison. The court ordered defendant to pay various fines and fees and awarded him 249 days of custody credit.
II. DISCUSSION
Defendant contends the trial court abused its discretion in not admitting the out-of-court statement made by Puleo-Coats as a declaration against interest under section 1230. We conclude the statement was properly excluded.
Evidence of a statement made out of court which is offered to prove the truth of the matter stated is hearsay and is inadmissible, unless an exception to the rule against hearsay applies. (§ 1200.) 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 the evidence must show that (1) the declarant is unavailable, (2) the statement was against the declarant's penal interest when made, and (3) the statement was sufficiently reliable to warrant admission despite its hearsay character. (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) The trial court may consider the words spoken, the circumstances under which they were spoken, the possible motivation of the declarant, and the declarant's relationship to the defendant in determining whether the statement is truly against the declarant's interest and, thus, sufficiently trustworthy to be admissible under section 1230. (Grimes, supra, at pp. 711, 714-716.)
There is no dispute that Puleo-Coats was unavailable, she exercised her privilege against self-incrimination. (People v. Brown (2003) 31 Cal.4th 518, 535; People v. Duarte (2000) 24 Cal.4th 603, 609 (Duarte).) There also is no dispute the declarant's statement was against her penal interest. Thus, the only issue raised on appeal is whether Puleo-Coats's statement was trustworthy. The trial court ruled it was not. We review that decision for an abuse of discretion. (Grimes, supra, 1 Cal.5th at p. 712.)
When evidence is offered under one of the hearsay exceptions, such as the exception for statements against penal interest, the trial court must determine as preliminary facts (1) "that the out-of-court declarant made the statement as represented," and (2) "that the statement meets certain standards of trustworthiness." (People v. Cudjo (1993) 6 Cal.4th 585, 608.) In determining whether the declarant's statement is sufficiently trustworthy, the trial court assumes the declarant made the statement, and evaluates whether the circumstances, and the record, indicate the declarant was probably telling the truth when she made the statement. (See id. at pp. 607-608; Duarte, supra, 24 Cal.4th at p. 614.)
Generally, if a statement " 'is truly against interest within the meaning of [section] 1230,' " it is sufficiently trustworthy to be admissible. (People v. Geier (2007) 41 Cal.4th 555, 584; see also People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.) Nevertheless, "even when a hearsay statement runs generally against the declarant's penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission. [Citations.]" (Duarte, supra, 24 Cal.4th at p. 614.) Accordingly, "the trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry." (People v. Greenberger (1997) 58 Cal.App.4th 298, 334.)
In this context, "the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others. . . . However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]" (People v. Greenberger, supra, 58 Cal.App.4th at p. 335.) Furthermore, a sufficient indicium of trustworthiness also may be found when an accomplice admits culpability and does not attempt to shift blame to another. (People v. Brown, supra, 31 Cal.4th at pp. 536-537.)
Here, the declarant was detained by Officer Trudell. There was a loaded firearm hidden between the driver's seat and the console, in the car in which she was a passenger. Thus, having said nothing, she already was facing criminal charges for possessing a loaded firearm, and having a concealed firearm in a vehicle.
Puleo-Coats then told the detaining officer that the black bag found inside the car belonged to her boyfriend. She said there was methamphetamine in the bag and the gun came from the same bag. Then, she told the officer that defendant was trying to stay out of trouble and "all the drugs and the gun" were hers. Finally, she went back to her original statement, that the bag belonged to her boyfriend. Thus, it appears Puleo-Coats was trying to shift blame to her boyfriend and away from her and defendant. She is not admitting culpability. Based on these circumstances alone, the trial court could reasonably conclude her statement was untrustworthy.
The inconsistencies in Puleo-Coats statement further reduced its trustworthiness. As noted by the trial court, Puleo-Coats told Officer Trudell the white powdery substance in the bag was methamphetamine but it was not. She said she threw the gun out of the car, but it was found "lodged" between the driver's seat and the console. And, she changed her story twice about whether the bag and its contents belonged to her or to her boyfriend. It was within the court's discretion to find these inconsistencies rendered the Puleo-Coats statement untrustworthy.
Defendant nevertheless contends that if the statement was trustworthy enough to support arresting Puleo-Coats and charging her with possession of an unregistered, loaded firearm and carrying a concealed firearm in a vehicle, then the statement was trustworthy enough to be admitted under section 1230. Put another way, defendant effectively argues the prosecution should not be allowed to argue a statement is unreliable while simultaneously basing a prosecution on the same statement. Defendant argues that these inconsistent positions raise some "serious ethical questions." While this argument has some appeal, it is made without citation to legal authority and, importantly, the factual predicate is not supported by the record.
First, defendant puts too much weight on Puleo-Coats's statement relative to Officer Trudell's decision to arrest her. There is no evidence in the record that Officer Trudell found probable cause to arrest Puleo-Coats because he believed her statement that the drugs and guns were hers. Indeed, she also claimed they were not hers. It is therefore more likely he found probable cause to arrest her because he found her in a vehicle, where officers also found a hidden, loaded firearm, and with people apparently engaged in a drug-transaction.
Second, there is nothing in the record to suggest the People charged Puleo-Coats with possession of a loaded, unregistered firearm and carrying a concealed firearm in a vehicle on the basis of her statement to the arresting officer rather than the fact that she was in a car where officers found a loaded, unregistered firearm hidden between the driver's seat and the center console.
We conclude the trial court did not abuse its discretion in refusing to admit Puleo-Coats's out-of-court statement to Officer Trudell. B. Defendant's Admission to Priors
Defendant also contends his admission of the prior prison term allegations was invalid because he was not advised of the penal consequences of his admission and, at the time of the admission, he was not "specifically" advised of his right to confront witnesses and against self-incrimination. Defendant further contends the trial court erred in failing to obtain an "express waiver" of his trial rights. We reject these contentions.
"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary." (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross); see Boykin v. Alabama (1969) 395 U.S. 238, 243-244 (Boykin).) The court must inform the defendant of the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers, and solicit a personal waiver of each right. (Cross, supra, at p. 170; People v. Howard (1992) 1 Cal.4th 1132, 1179; see Boykin, at pp. 243-244; In re Tahl (1969) 1 Cal.3d 122, 130-133 (Tahl).) Likewise, before a defendant admits to the truth of an enhancement allegation, such as the prior conviction allegations at issue here, the trial court must similarly advise the defendant of, and the defendant must waive, his or her Boykin/Tahl rights. (Cross, supra, at p. 170; In re Yurko (1974) 10 Cal.3d 857, 862-863.) The trial court must also insure a defendant understands the penal consequences of his admission. (In re Yurko, supra, at p. 864.)
1. Express Waiver of Trial Rights
Here, the trial court advised defendant of his right to confront witnesses and to remain silent when she granted defendant's motion to bifurcate the trial on his prison prior allegations. Less than one month later, the trial court accepted defendant's admission without specifically advising him of his Boykin/ Tahl rights a second time and without obtaining an express waiver. Whether this was error, it was harmless because a review of the record affirmatively shows the admission was voluntary and intelligent under the totality of the circumstances. (People v. Howard, supra, 1 Cal.4th at p. 1175; People v. Mosby (2004) 33 Cal.4th 353, 360-361 (Mosby).)
After the trial court advised defendant of his right to confront witnesses and the right to remain silent, defendant participated in a four-day jury trial during which he exercised his constitutional right to remain silent and, through counsel, vigorously confronted adverse witnesses. (Mosby, supra, 33 Cal.4th at p. 364.) Under these circumstances defendant, more than the defendant in Mosby, would have fully understood he had the right to confront witnesses against him and to remain silent. And, contrary to defendant's claim on appeal, his admission was not rendered involuntary and unintelligent because he did not make his admission "immediately" after the jury's verdict.
There was an approximately three-week period between the jury's verdict and defendant's admission. That period of time was not so long that a reasonable person in defendant's position would have been likely to forget or become confused about his recently exercised rights. (See United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-1111 [the defendant, who had received full advisements in state court action two months before he entered a guilty plea on incomplete advisements in federal court, knowingly waived rights of confrontation and silence despite lack of advisement on either].) Moreover, unlike the defendant in People v Lloyd (2015) 236 Cal.App.4th 49, 59, defendant does not suggest that he experienced any change in counsel, such that new counsel may have failed to discuss the consequences of his admission with him.
Defendant was also familiar with the criminal justice system, having previously been convicted of numerous felonies and misdemeanors in the preceding 31 years. We can infer defendant's understanding of his constitutional rights from his extensive experience with the criminal justice system. (Mosby, supra, 33 Cal.4th at p. 365.)
2. Penal Consequences
Defendant also claims the court erred in failing to advise him of the penal consequences of his admission. As discussed above, before a defendant admits the truth of a prior conviction allegation, he or she must be advised of the direct consequences of that admission. (In re Yurko, supra, 10 Cal.3d at p. 864; People v. Walker (1991) 54 Cal.3d 1013, 1022, overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) That advisement, however, is not constitutionally mandated, but is, instead, "a judicially declared rule of criminal procedure." (In re Yurko, supra, at p. 864; see also People v. Wright (1987) 43 Cal.3d 487, 495.) Accordingly, any error by the trial court in not advising a defendant of the penal consequences of his or her admission of prior prison term allegations "is waived if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is 'reasonably probable' the defendant would not have pleaded guilty [or admitted the truth of the prior prison term allegation] if properly advised [of its penal consequences]. [Citation.]" (People v. Walker, supra, at p. 1023.) Because the record does not show defendant objected at the time he admitted the allegations and was sentenced on the specific ground that he was not adequately advised of the penal consequences of the admissions, we conclude he forfeited that objection by not timely objecting on that ground in the trial court. (Ibid.)
Even assuming defendant had timely objected, we would nonetheless conclude he did not carry his burden on appeal to show he was not adequately advised of the legal or penal consequences of his admissions on the prison prior allegations. Immediately prior to admitting the prior prison term allegations, defendant's counsel stated on the record that defendant would admit to six of the seven prior prison term allegations, which would result in defendant serving an additional six years in prison for an aggregate term of 10 years in state prison. Moreover, defendant had entered into at least seven guilty pleas prior to this case. Again, on this record, we can reasonably infer he was fully aware of the consequences of his admission. C. Custody Credits
Defendant initially claimed he was entitled to 389 days of presentence custody credits, rather than the 249 days awarded by the trial court. In his reply brief, however, he concedes the record shows he was in custody between May 20 and July 23, 2015, on a different matter. As a result, he acknowledges he is not entitled to any additional custody credits.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.