Opinion
G057281
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS ALBERTO TABARES, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, William H. Shin, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF3549) OPINION Appeal from a judgment of the Superior Court of Orange County, Kathleen E. Roberts, Judge. Affirmed. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, William H. Shin, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jesus Alberto Tabares of attempted murder, attempted carjacking, and other felonies arising from the same incident. The court sentenced him to 25 years to life in prison.
Defendant argues the trial court improperly admitted hearsay testimony and evidence of a prior crime. We disagree and affirm the judgment.
FACTS
R.R. was parked in front of a liquor store when a man approached his car. The man pointed a gun at R.R.'s head through his driver's side window and said "Get the hell out or I'm going to kill you if you don't get off this truck." R.R. began rolling up his window as the man tried unsuccessfully to open the driver's side door.
The man pulled his arm out of the driver's side window and fired once, hitting R.R. in the arm. R.R. chased after the man, but he escaped.
M.T., testified she spoke to defendant over the phone the day after the shooting. Defendant said he had gotten in trouble the night before. He said he had hurt someone and he thought they might be dead, but did not describe specifically what happened or where it happened.
M.T. called the police and gave them defendant's contact information, but also said the incident happened at a 7-Eleven. During cross-examination, she verified defendant never said the incident happened at a 7-Eleven, but explained "I told [the police] that, from what I had heard, [the incident] was at a 7-Eleven[.]" During redirect examination, the prosecution asked her what caused her to mention 7-Eleven. Defense counsel objected on hearsay grounds and the court overruled the objection, admonishing the jury "she's going to be allowed to . . . explain her actions why she did something or said something herself . . . whatever she heard is not coming in for the truth of what she heard, only to explain her actions." M.T. answered: "[M]y mom had heard rumors, because it's a small community, that [defendant] had shot somebody at a 7-Eleven."
DISCUSSION
1. Hearsay.
Defendant argues the court erred by allowing M.T. to testify her mother heard rumors defendant shot someone at a 7-Eleven. We disagree.
Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" and is generally inadmissible. (Evid. Code, § 1200, subds. (a)-(b).) A statement is not hearsay if it is offered for something other than the truth of the matter asserted (nonhearsay purpose). (People v. Guerra (2006) 37 Cal.4th 1067, 1140-1141 (Guerra) overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) However, "[t]he nonhearsay purpose must be relevant for the statement to be admissible for that purpose. [Citation]." (People v. Livingston (2012) 53 Cal.4th 1145, 1162.) We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. (People v. Henriquez (2017) 4 Cal.5th 1, 31 (Henriquez).)
All further statutory references are to this code.
In this case, M.T.'s testimony about the rumor her mother heard was offered for the nonhearsay purpose of explaining why she told the police the incident happened at a 7-Eleven. (Guerra, supra, 37 Cal.4th at pp. 1140-1141 [statement admitted to explain why victim did not report something to police]; Henriquez, supra, 4 Cal.5th at p. 32 [statement admitted to explain defendant's motive for committing crime]. The court explained the nonhearsay purpose by telling the jury the statement was only being admitted to explain M.T.'s actions.
Further, the testimony was relevant because it related to M.T.'s credibility. (§ 210.) Defense counsel attacked M.T.'s credibility by establishing she told details about the incident to the police she did not learn from defendant. Therefore, her explanation as to why she included such details was relevant.
Section 210 provides: "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
Defendant also argues M.T. should not have been able to answer the question on redirect examination because she had already provided some information about the rumor on cross-examination. However, the questions on redirect examination were proper because the rumor was a new matter which had only been introduced during cross-examination. (§ 774.)
Section 774 provides: "A witness once examined cannot be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action."
In sum, no abuse of discretion has been shown. 2. Evidence of Uncharged Prior.
Because the court did not err in admitting M.T.'s testimony, we need not address defendant's additional argument admitting the testimony resulted in prejudicial error.
Defendant argues the court improperly admitted evidence of his prior robbery. We are not persuaded.
A. Background
The prosecution sought to admit testimony defendant committed a prior robbery pursuant to section 1101, subdivision (b) (section 1101(b)). The court determined the prior was admissible as probative evidence of intent for the charge of attempted carjacking.
A.R. testified defendant approached her and her husband while they were seated in their car. Defendant made small talk with them, but when A.R. said they were going to leave, defendant pulled out a machete and said "Well, how about you give me all your fucking money or I'm going to kill you right now?" Defendant put the machete through the open car window to her husband's neck and A.R. gave him her money.
B. Discussion
Section 1101(b) allows for the admission of evidence of a prior crime "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act." "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant 'probably harbor[ed] the same intent in each instance.' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 4th 380, 402.) With respect to similarity "[t]he least degree of similarity . . . is required in order to prove intent." (Ibid.) We review the trial court's ruling on the admissibility of the prior conviction under section 1101(b) for an abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.)
Defendant's prior conduct was sufficiently similar to his current charge to be admitted to prove he had the intent to commit carjacking. In each incident defendant used a weapon against people in cars for the purpose of taking their property. Defendant argues the incidents are dissimilar because defendant only attempted to steal A.R.'s money and not her car. However, he provides no authority to support the conclusion he must intend to steal the same type of property in the current case in order for his prior to be admissible. And we will not interpret section 1101(b) as having such a requirement.
Defendant also contends the evidence of the prior should have been excluded under section 352 because it was more prejudicial than probative. We disagree. A trial court's ruling under section 352 is reviewed for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.)
Defendant argues the prior: (1) had little probative value because the incidents were dissimilar, and (2) was highly prejudicial. As we discussed, there was sufficient probative value based on the similarities between the incidents. Further, because the prior did not involve the use of a gun, it was less egregious than the current conduct. Thus, the trial court did not act arbitrarily or capriciously in admitting the prior incident.
Because the court did not err in admitting defendant's prior, we need not address defendant's additional arguments: (1) the admission of the prior resulted in prejudicial error, and (2) the cumulative weight of the admission of M.T.'s testimony about the rumor and defendant's prior resulted in prejudicial error. --------
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.