Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. RIF129736 of Riverside County. Ronald L. Taylor, Judge. (Retired Judge of the Riverside S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
Defendant and appellant Jose Velasquez Sanchez appeals after he was convicted of one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and one count of being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). He contends that the trial court erred in refusing to admit certain evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
On April 18, 2006, Riverside Police Officers Santos and Detmer received a report concerning a fight between some Hispanic males taking place near an auto repair garage. The report indicated that a knife was involved, and some of the men were in a white Ford Expedition SUV. As the officers responded to the area, they saw an SUV matching the description in the report, speeding toward the site of the fight. The officers made a traffic stop. Defendant, the driver, appeared out of breath; he was flushed and breathing hard. He had blood on his lip and his hand. Officer Santos asked defendant if he had been in a fight. He replied that it had been an “argument,” and it was “no big deal.”
Officer Santos had defendant step out of the car, handcuffed him, and seated him on the curb. Defendant gave a false name to Officer Santos.
Meanwhile, Officer Detmer detained the passenger, defendant’s brother. Officer Detmer saw a rifle under a blanket on the floor of the passenger’s side of the SUV. He took possession of the rifle, a loaded .22-caliber weapon. More .22-caliber ammunition was found under the passenger’s seat.
Defendant testified in his own behalf at trial. He borrowed his wife’s SUV and went with his brother to a liquor store to buy sodas. While defendant went into the store, defendant’s brother remained outside, talking to a Hispanic man. The other man had a large, black duffel bag. Defendant saw his brother give the man two $100 bills in exchange for the duffel bag. Defendant’s brother returned to the SUV. The third man then tried to take back the duffel bag. Defendant’s brother struggled with him, and the man tried to stab defendant’s brother with a knife. Defendant came to his brother’s aid. The man hit defendant in the mouth with brass knuckles and ran away.
Defendant and his brother drove home. Defendant went into the bathroom to wash blood off his bleeding lip. He did not see what his brother was doing while he was in the bathroom. Defendant’s brother asked to be taken back to the location where the fight had occurred. His brother did not explain why he wanted to go back there. Defendant claimed he did not know that anyone had put a rifle or bullets into the SUV. When the police stopped the SUV, defendant stopped. He was taken out of the car and handcuffed. Defendant was surprised when police found the rifle and bullets in the car. Defendant’s brother had keys to the car and could have put the gun and bullets inside. Defendant never saw the blanket on the floor of the passenger side of the car.
Defendant was charged with making a false statement to a police officer (giving a false name), driving without a license, being a felon in possession of a firearm, and being a felon in possession of ammunition. Before trial, defendant admitted that he had been convicted of a felony. He also pleaded guilty to the misdemeanor charges, driving without a license and making a false statement to an officer.
A jury convicted defendant of the two remaining counts. The matter of defendant’s prior convictions was tried to the court. The court found true one prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)) and four felony strike priors (Pen. Code, § 667, subds. (b)-(j)). The court struck three of defendant’s strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant received a five-year state prison sentence.
ANALYSIS
I. Standard of Review
At trial, the court admitted part of a statement made to police by defendant’s brother. The brother was not available at trial. The out-of-court statement was hearsay. The court admitted part of the statement as a declaration against the brother’s penal interest, but excluded part of the statement. Defendant urges that the court’s ruling on the admission of the second part of the brother’s statement was error.
Defendant recognizes that alleged error in the admission and exclusion of evidence is ordinarily reviewed under the abuse of discretion standard. (People v. Gordon (1990) 50 Cal.3d 1223, 1250-1253.) Defendant urges, however, that the excluded portion of his brother’s statement so eviscerated his defense that he was deprived of his constitutional right to present a defense. We reject this contention. Defendant had a full and fair opportunity to litigate the issues and to argue his theory of the defense. The appropriate standard of review is abuse of discretion.
II. The Trial Court Properly Excluded a Portion of the Brother’s Statement
An investigator interviewed defendant’s brother near the time of the incident. The investigator informed defendant’s brother that both men were charged with possession of a firearm. The brother told the investigator that he had personally wrapped the gun in a blanket and placed it in the SUV. He also stated that defendant did not know that the gun was in the car. Defendant sought to admit both portions of the brother’s statement as a declaration against the brother’s penal interest.
“ ‘Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest. The proponent of such evidence must show “that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 584.)
Defendant’s brother was unavailable as a witness. The trial court ruled that the brother’s statement, to the effect that he had placed the gun into the vehicle, was a statement against the brother’s penal interest, as it rendered him liable to misdemeanor charges for possession of a firearm. As to the second portion of the brother’s statement, however, the court ruled that it was insufficiently reliable to be admitted:
“That second part of the evidence statement that [defendant] seeks to introduce, I don’t think that is reliable evidence, because I don’t think [defendant’s brother] would know with any certainty whether [defendant] was aware that the weapon was in the vehicle or not. [¶] It was a .22 rifle, and it was found on the floor of the passenger side of the vehicle with the barrel . . . headed in the direction of the driver’s floorboard. [¶] The defendant was the driver. But I don’t think it would be competent evidence for the declarant to express an opinion that the defendant did not know that the weapon was in the vehicle.”
The court’s ruling was correct. The portion of the statement relating to defendant’s purported knowledge did not relate to the declarant’s penal interest. Rather, it served merely to exculpate defendant, and not to inculpate the declarant. That portion of the statement was not shown to be trustworthy. “In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the 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 declarant’s relationship to the defendant.” (People v. Frierson (1991) 53 Cal.3d 730, 745.) The circumstances here militated against the trustworthiness of the statement. The evidence concerning the gun and its placement in the vehicle showed that it was on the floor on the passenger side of the vehicle, but the barrel rested on the drive-train hump, pointing toward and within reach of the driver, defendant. The gun was loosely covered by a blanket, not wrapped. At the time the declarant made the statement, he faced minor charges with respect to the gun, but defendant faced major charges. The declarant was defendant’s brother. He had a powerful motive to protect defendant. Finally, although the declarant was in a position to describe his own actions, he was in no position to describe in any authoritative way someone else’s state of mind or observations.
In the context in which the statement was made, the second, collateral portion, concerning what defendant purportedly knew, was not admissible as a declaration against interest. (People v. Lawley (2002) 27 Cal.4th 102, 153.)
III. Any Error Was Harmless
Even assuming the trial court erred in its evidentiary ruling, any error was harmless. Defendant testified directly as to his state of mind, claiming that he did not know the rifle was in the car. The portions of the brother’s statement that were admitted included the circumstances that, while defendant was in the bathroom at home, the brother put the rifle and ammunition in the car, wrapped in a blanket. The evidence which could have supported an inference that defendant did not know the rifle and ammunition was present, had the trier of fact so weighed it. The jury was fully instructed on the state of knowledge and intent required to find defendant guilty of possession of the bullets and the rifle. Defendant had a full opportunity to argue his theory of the case, i.e., that he had no knowledge that the gun or ammunition were inside the SUV. It is not reasonably probable that, had the additional statement been admitted, the result would have been any more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) The jury fully considered and rejected his claim not to have known that the rifle or ammunition were present; the jury’s verdict indicates that it necessarily rejected that defense. (See People v. Green (1995) 34 Cal.App.4th 165, 18l, fn. 8.)
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.