P. v. Lewis

Filed 3/5/07 P. v. Lewis CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Timothy Edward Lewis was found guilty by a jury of one count of possessing a completed check with intent to defraud (Pen. Code, 475, subd. (c)) and two counts of forging checks (Pen. Code, 470, subd. (a)). On appeal he raises numerous contentions concerning the admissibility of certain incriminating extrajudicial statements by Valerie Williams, an alleged collaborator in the offenses, who was not available to testify at trial. We hold that defendants right to confront his accusers was violated when the trial court admitted evidence of incriminating statements Williams made to a deputy district attorney immediately prior to, but not introduced in evidence at, defendants preliminary hearing. Since her testimony at that hearing was entirely exculpatory, and since no evidence of the incriminating statements was introduced there, cross-examination of her concerning those alleged statements would have been prohibited by Proposition 115. Since defendant was thus statutorily barred from confronting Williams concerning those alleged statements, his constitutional rights were violated by their admission at trial. Further, the court abused its discretion when it admitted evidence of defendants prior convictions on the ground that his attorney had opened the door to character evidence by asking defendants employer whether he had terminated defendants employment as of a specified date. We hold that the constitutional error was not harmless beyond a reasonable doubt. Accordingly, we will reverse the judgment.

Background

On December 31, 2001, Valerie Williams successfully cashed, at separate Bank of America branches, two forged checks, in the amounts of $241.50 and $180.00, on the account of Pamela Kimball. About 40 minutes after the second check was cashed, Palo Alto Police Officer Jessica Perryman saw an automobile, operated by defendant, near a third Bank of America branch. She watched as Valerie Williams got out of the car and entered the bank. Defendant entered a liquor store, emerged, and drove around the block towards the bank, where he picked up Williams. Officer Perryman stopped the car for having broken taillights and a broken windshield. Upon obtaining the occupants identification, she learned there was a warrant for Williamss arrest. She removed Williams from the car and handcuffed her. Another officer saw Williams drop a crumpled-up cigarette pack. It proved to contain a crushed crack pipe and a torn up check drawn on the account of Pamela Kimball. A teller in the nearby bank reported that Williams had attempted to cash the check, but had left the bank when told that a signature verification would be necessary.

At the time of her arrest, Williams had $94 in cash on her person. Defendant had a wallet in his back pocket and a money clip in a front pocket, both empty of cash, plus two wads or rolls of cash in his front right pocket: $180 in $20 bills, and $140 in $20 bills and two $10 bills.

After arresting Williams, Officer Perryman asked defendant about his relationship with her. He first said she had asked him for a ride, and that he did not know her. He then said, I dont really know who she is. Finally he said that she lived around the corner from him in East Palo Alto. Officers went to defendants home, which he shared with Williamss cousin, Jennifer Morrison, who was on probation with a search clause. In the bedroom shared by defendant and Morrison, officers found a bill that had been mailed to Williams at that address.

Pamela Kimball testified that the check dropped by Williams came from a box of blank checks that had been mailed to her at her Palo Alto condominium. She had received the box in early or mid-December, 2001, retrieving it from a room where larger mail is distributed to building residents. Upon examination it appeared that someone had opened the box, removed a booklet of 30 checks, then resealed the box with clear tape to make it appear unopened.

Doug Greene, the general manager of the condominium complex, testified that defendant worked in the buildings maintenance department from November 7, 2001, through December 31, 2001, when he left at noon. All residents and staff members, including defendant, had access to the area where bulky mail items were left. Greene testified over objection that he fired defendant in January 2002 upon learning from police that defendant had sustained more criminal convictions than he had disclosed on his employment application.

The defense attempted to show that the checks could have been stolen by one Dwayne Smith, who worked for Greene for one day in May 2001. Greene considered it unlikely that Smith could have left the building with a work key. However, he might have obtained a perimeter key, which would have given him access to the building. At least five such keys had been lost or misplaced in the year preceding trial.

Also found in defendants car was a pager that proved to belong to Grant Anderson, another resident at the condominium complex. The pager had been disconnected in 1993 or 1994 and was last seen by Mr. Andersons wife in a junk drawer around 1999.[1]

Jennifer Morrison, who had married defendant by the time of trial, testified that they had been living together for about a year prior to his arrest. During that time, Valerie Williams did not live at their home and never stayed the night. Williams was homeless, her parents were good friends of Ms. Morrisons parents, and Williamss mother lived just down the street. Defendant had been present a couple of times when Ms. Williams visited, and he knew her name and face, but did not know her well. Williams had lived at Morrisons home for a month or two in 1997 or 1998. Morrison would sometimes receive mail for Williams, on which she would write return to sender. She had told Williams not to have mail sent to that address. Because of the holidays, she had not gotten around to returning the bill found by police. Dwayne Smith lived on the same street as Ms. Morrison and Ms. Williams.

On January 3, 2002, the prosecutor, who was not yet aware of the two checks Williams had successfully passed, but only of the torn up check found at the time of her arrest, filed a felony complaint charging defendant and Williams with one count of possessing a completed check with the intent to fraudulently utter it. (Pen. Code, 475, subd. (c).) On January 14, 2002, according to Santa Clara County Sheriffs Deputy Rick Alanis, Williams made the following comment while being transported from her cell: I got to come back next Friday . . . . [A]ll this bullshit is taking too long. I am getting hung up because my codefendant, shit, he wants me to lie for him. He wants me to commit perjury up in there. I aint going there, hell, no. He wants me to cover all of this up for him like he wasnt involved in this shit, yeah, right. On February 20, 2002, Williams pleaded guilty to the one count alleged in the complaint and was sentenced to 16 months in prison.

On September 18, 2002, a preliminary examination commenced in the case against defendant. Immediately prior to the hearing, Deputy District Attorney James Leonard visited Williams in a custody cell, where she had apparently been brought from prison in order to testify. Leonard later testified that he made the visit solely to find out whether Williams had filed an appeal from her conviction, which would affect her right to assert a Fifth Amendment privilege at the preliminary hearing. Instead they engaged in a general discussion in which he told her, among other things, that his office had decided not to pursue charges against her with respect to the two other checks, of which authorities had by now learned. She expressed reluctance to testify but, as Leonard testified at trial, she also told him she had gotten the checks from defendant, that they were already filled out when she got them, and that he drove her to all three banks.

When Williams took the stand at the preliminary hearing, she testified that although defendant had driven her to the banks, he had known nothing about the forged checks and was not involved in her passing them. Instead, a third party named D.D. Smith had provided the checks to her. He had told her that the checks would be waiting in the car when she entered it. She retrieved them before defendant got in the car. She had defendant drive her to the first bank, where she cashed the check for $241.50. She then had him drive her to Sears, where she bought clothing worth $92, then crossed the street and cashed the second check, for $180. She returned to defendants car through Sears. She then asked defendant to take her to a liquor store, where she apparently bought some cigarettes, then crossed the street to the third bank and attempted to cash another check. She denied ever giving defendant any of the proceeds from the checks, and denied saying the things Deputy Alanis attributed to her. She acknowledged that she knew defendant, who was dating her cousin.

No evidence was introduced at the preliminary hearing concerning any statements by Williams to Deputy District Attorney Leonard. When he questioned her on that subject, she denied inculpating defendant: Q. Did you tell me downstairs that Mr. Lewis gave the checks to you? [] A. No, I didnt. [] A. You did not say that to me down in the basement of this building? [] A. I told you those checks were just there. I told you. I didnt say he handed me anything. You asked me where I got them. I said they were already in the car, its what I said to you, sir.

At trial the parties stipulated that Valerie Williams was unavailable to testify. Her preliminary hearing testimony was read into the record. Deputy Aranis and Deputy District Attorney Leonard also testified concerning her pretrial statements to them.

The jury found defendant guilty on all counts. The court sentenced him to five years and imposed fines including a $3,000 restitution fine under Penal Code section 1205.4. Defendant filed this timely appeal.

Discussion

I.Right to Confrontation

A. Background

At trial the prosecution proposed to put in evidence both the preliminary hearing testimony of Valerie Williams and her reported statements to Deputy District Attorney Leonard, as reported by him, that defendant had supplied her with the forged checks. Defense counsel objected to the latter statements on grounds that their admission violated defendants right to confront the witness. The prosecutor responded that Leonard had questioned Williams about their conversation at the preliminary hearing, and that immediately prior to the hearing he had told defense counsel that he had spoken to Williams, at which time she had told [him] she passed the first two checks. She only wrote on the backs of the check. Lewis drove her to all three banks and she received the checks from Lewis. Defense counsel rejoined that this disclosure did not approach the level of detail to which Leonard now proposed to testify, as reflected in a memorandum memorializing the conversation with Williams, a copy of which was provided to the defense only after the preliminary hearing. The court overruled the objection, adopting the prosecutors argument that in cross-examining Williams at the preliminary hearing, the defense had an interest and motive similar to those it would have at trial, bringing the evidence within the former testimony exception to the hearsay rule. (Evid. Code,  1291.) The trial court adopted this argument and overruled the objection.[2]

Pursuant to this ruling, Leonard testified that immediately before the preliminary hearing he visited Williams in a holding cell in the courthouse basement, where she was held after having been subpoenaed by the prosecution to testify at the preliminary hearing. Leonard told her he had come to find out whether she had filed an appeal from her own conviction on one count of check fraud. He wanted to know about the appeal in order to ascertain whether she still had a right to assert her privilege against self-incrimination with respect to the checks. She told him she had not filed an appeal.

Leonard denied making any promises to Williams in exchange for her testimony, but he acknowledged telling her early in their conversation that his office had discovered that she passed two other checks that same day, and that we had reviewed it and decided we werent going to seek prosecution on those two counts. He said this to her, he testified, because he didnt want her to think that she was possibly going to be charged with something that I knew we already discussed and we werent going to charge her with.

Leonard testified that Williams agree[d] to speak with him. She asked him why she was there and he told her she had been brought there to testify against defendant. She exhibited discomfort at this, asking whether she had to divulge certain names of people, things like that, and what would happen if she refused to speak in court. Leonard replied that the judge could hold her in contempt. She asked what would be the consequences of lying, and he confirmed that that would be perjury. She said she would be willing to testify about her own conduct in the check matter, but she didnt want to say anything about anybody else. She said it could create problems with her cousin Jennifer Morrison, who by then had married defendant. She kept repeating that she wanted to get on with what she called her program and she was going to have to go back to that neighborhood and she didnt want to have to deal with problems implicating or testifying about someone else like . . . her cousin Ms. Morrison or other people in the neighborhood.

Leonard asked Williams who wrote the checks, and she replied that she did not know, but that they were already filled out when she received them. He asked her how she got to the banks, and she replied that she was driven there by defendant. She said that there had been someone else involved in the matter but that she didnt want to name that person. She asked Leonard whether he was going to ask her for that name, and he replied that he just wanted to know who had given her the checks. She then flat out ask[ed] [him] what [he] wanted her to say. He replied that he just wanted to know the truth. [E]ventually she said that Mr. Lewis drove her to each of the banks and when I asked her again How did you get the checks? and she said that Tim handed her the checks. She said she got the checks before she went into each bank. She expressed the desire not to be transported with defendant, and Leonard said he would relay this preference to correctional officers, but had no control over them.

On cross-examination Leonard testified that after the conversation ended, he returned to the courtroom, where he told defense counsel that  I had spoken with Williams and that she had told me she passed the first two checks, she only wrote on the back of the checks. Lewis drove her to all three banks and she received the checks from Lewis. 

B. Discussion

As pertinent here, the Sixth Amendment to the United States Constitution provides, In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. In Crawford v. Washington, supra, 541 U.S. 36, the court declared that the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. (Id. at p. 50.) The clause thus applies to all testimonial statements, wherever and whenever made. (Id. at pp. 51-53.) These include [s]tatements taken by police officers in the course of interrogations, which bear a striking resemblance to examinations by justices of the peace in England, the paradigmatic source of evidence proscribed by the clause. (Id. at p. 52; see id. at pp. 43-44, 46; Davis v. Washington (2006) ___ U.S ___ [126 S.Ct. 2266, 2277, 2279] (Davis) [tape of 911 call was nontestimonial to extent it addressed ongoing emergency, but affidavit prepared by officer for wife of domestic abuse defendant was testimonial].) The court went on to declare that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. 53-54.)

Thus the basic rule of the confrontation clause, as explicated in Crawford, is that a testimonial extrajudicial statement must be excluded on defense objection unless the declarant is subject to cross-examination at trial, or the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. 53-54, 68.) Here the parties agree that the declarant, Valerie Williams, was unavailable to testify at trial.[3] Nor is it disputed that the statements made by Williams to Leonard were testimonial, i.e., the product of an ex parte examination by an officer of the stateindeed, the state prosecutor himself. They were by no means addressed to an ongoing emergency. (Cf. Davis, supra, ___ U.S. at p. ___ [128 S.Ct. at p. 2273].) While Leonard may not have entered the conversation with the intention of gathering evidence against defendant, once he began asking Williams about the facts of the case, the so-called interview had  evolve[d] into testimonial statements.  (Id. at p. ___ [128 S.Ct. at p. 2277], quoting Hammon v. State (Ind. 2005) 829 N.E.2d 444, 457.) Indeed it is difficult to picture a situation more nearly resembling the inquisitorial mode of prosecution than one in which the state prosecutor elicits incriminating statements by privately interrogating a witness in a cell.

The sole question therefore is whether Williams exposure to questioning at the preliminary hearing afforded defendant the opportunity for cross-examination required by the confrontation clause. (Crawford, supra, 541 U.S. at p. 54.) A bare chance to ask questions will not satisfy the constitutional command, which has long been read as securing an adequate opportunity to cross-examine adverse witnesses. (United States v. Owens (1988) 484 U.S. 554, 557, italics added; see California v. Green (1970) 399 U.S. 149, 158 [the Confrontation Clause is not violated by admitting a declarants out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination]; Delaware v. Fensterer (1985) 474 U.S. 15, 21-22 (per curiam) [the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities [in the witnesss testimony] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness testimony].)

Here it is critical that Williamss testimony at the preliminary hearing was entirely exculpatory, and that no evidence was presented at that hearing of the contrary statements attributed to her by Prosecutor Leonard. Leonard asked her about one of those statements, i.e., whether she had told him that Mr. Lewis gave the checks to you, but she flatly denied it. It is axiomatic that the factual premise or insinuation of an examiners question is not evidence except as it supplies meaning to the witnesss answer. (CALJIC No. 1.02; see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, 643, p. 925; People v. Hughes (2002) 27 Cal.4th 287, 387; People v. Fodera (1917) 33 Cal.App. 8, 13.) Where the witness denies the matter asserted by a question, the assertion remains unsupported by evidence. Here the only evidence was that Williams had made no such statements.

Had the hearing been in the nature of a deposition or some sort of proto-trial, defense counsel might fairly have been expected to examine Williams about the statementsat least those of which Leonard had apprised himand perhaps even to call Leonard himself to the stand, to tell all he knew about them. But the purpose of a preliminary hearing is only to have the magistrate examine the case (Pen. Code, 860) to determine whether there is sufficient cause to believe that the defendant [wa]s guilty (Pen. Code, 872, see 871). In most California criminal prosecutions the preliminary examination is conducted as a rather perfunctory uncontested proceeding with only one likely denouementan order holding the defendant for trial. (People v. Gibbs (1967) 255 Cal.App.2d 739, 743, fn. omitted.) A defendant is entitled to attack the prosecutions proofs, and even to present affirmative evidence, in an attempt to persuade the magistrate that the case is too weak to justify further prosecution. (See Jennings v. Superior Court (1967) 66 Cal.2d 867 [magistrate erred by refusing to grant continuance to permit defendant to call witness he contended had helped to entrap him]. However, this right to present evidence does not make the magistrate a trier of fact. (People v. Slaughter (1984) 35 Cal.3d 629, 637.) Indeed his opinion of guilt or innocence is of no legal significance whatever in view of the limited nature of the proceedings. (People v. Uhlemann (1973) 9 Cal.3d 662, 667, fn. 3.) The defendant is permitted to cross-examine and present evidence at the preliminary hearing, if he chooses, solely because [p]rosecution evidence which before cross-examination may seem to raise a reasonable suspicion may well, after the defense has finished, be seen as too insubstantial to justify holding defendant for trial. (People v. Slaughter, supra, 35 Cal.3d at p. 638, fn. 5.)

Thus defendants interest here was to persuade the magistrate, if possible, that there was insufficient evidence to hold him for trial. Williams failed to supply any incriminating evidence beyond acknowledging her own role in cashing the forged checks. If the prosecution elected not to introduce further incriminating proofs, it was hardly in defendants interest to do so. Such proofs were, from the defense perspective, sleeping dogs. If the prosecution chose not to loose them, defendant was entitled to let them lie.

It might be supposed that the anticipated use of the statements at trial provided the defense with both the occasion and the duty to examine Williams concerning her reported statements to Leonard, or to summon Leonard himself to the stand. But even if the rule in Crawford could otherwise be understood to oblige a defendant to go beyond the prosecutions proofs at a preliminary hearing, California law now prohibits him from doing so.

At one time, California defendants were held entitled to utilize the preliminary hearing to conduct discovery. (E.g., Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588 [holding indicted defendant entitled to preliminary hearing on equal protection grounds, relying in part on the important discovery function served by an adversarial preliminary hearing]; but see People v. Superior Court (Simmons) (1968) 264 Cal.App.2d 694, 699 [defendant was not entitled to question officers at preliminary hearing about his statements to them where, inter alia, there was no showing that he meant to use statements to discredit prosecution evidence at preliminary hearing].) Under such a regime it might at least be plausibly contended the preliminary hearing provides that an opportunity to confront a witness with respect to all inculpatory evidence that witness might be expected to give at trial.

But any such right of discovery was abolished in 1990 with the enactment of Proposition 115, one provision of which states, It is the purpose of the preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony. The examination shall not be used for purposes of discovery. (Pen. Code, 866, subd. (b), italics added.) The statute further bars the presentation of defense evidence at a preliminary hearing unless it tends to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness. (Pen. Code, 866, subd. (a).)[4]

Under this statute, the only proper function of a preliminary hearing is to determine whether the evidence actually adduced by the prosecution at that hearing justifies holding the defendant for trial. It expressly prohibits attacking, or developing evidence to attack, prosecution proofs that have not been placed in evidence. Here these proofs included any incriminating statements by Williams to Leonard. Defendant had no right to question her about those statements, and thus no constitutionally adequate opportunity to do so. For that reason alone defendants opportunity to question Williams at the preliminary hearing cannot be held to satisfy his right to confront her with respect to those statements.[5]

Even in the absence of these statutory restrictions, the preliminary hearing would afford a poor opportunity to explore potentially incriminating matter not placed in evidence at that hearing. As the court observed in People v. Green (1969) 70 Cal.2d 654, 663, neither prosecution nor defense is generally willing or able to fire all its guns at this early stage of the proceedings, for considerations both of time and efficacy. (Italics added; see 4 Witkin & Epstein, Cal. Criminal Law, supra, Pretrial Proceedings, 117, p. 320 [preliminary hearing gives the defendant some idea of the prosecutions case, although the prosecutor will limit the showing to the barest necessity].) The question is which party should bear the risk that the sketchiness of the prosecution showing may combine with extrinsic circumstancessuch as the death or disappearance of a witnessto create the situation presented here, i.e., that a hearsay declarant becomes unavailable to testify at trial with respect to statements not theretofore placed in evidence. To put that risk on the defendant obligates counsel, ready or not, to attempt to fire all [his] guns at the preliminary hearing in hopes of scoring some hits that can be utilized at trial. In effect he must guess what targets the prosecution may present at trial, and fire wildly at all of them. The result not only appears unfair on its faceafter all, the prosecution largely controls the proofs to be heard at the preliminary hearingbut seems bound to produce a wasteful protraction of such proceedings, as defense counsel seeks to examine all prosecution witnesses on the assumption that they may be absent at trial and that this may be the only opportunity to discredit them with respect not only to their actual testimony and statements introduced at the hearing, but any statements the prosecution may attempt to prove at trial. On the other hand, if the risk of their nonappearance is placed on the prosecution, it means only that the prosecution must decide which guns to fire, aware of the fact that unfired guns may be not be available at trial. This approach has the further salutary effect of limiting the universe of evidence that may properly be admitted at the preliminary hearing, keeping such proceedings manageable.

These considerations would militate in defendants favor even in the absence of the statutory prohibitions on challenging prosecution proofs not presented at the preliminary hearing. In light of those prohibitions, there can be little doubt about the matter. The preliminary hearing cannot properly be used to impeach or cross-examine a prospective hearsay declarant with respect to incriminating extrajudicial statements that have not actually been placed in evidence at that hearing. Accordingly, that hearing cannot afford the prior opportunity for cross-examination required by the confrontation clause under Crawford, supra, 541 U.S. at pp. 54, when the witness is unavailable at trial. As a result, defendants confrontation clause objection is meritorious, and the testimony of Leonard should have been excluded.[6]

II. Hearsay

Defendant also argues that Williamss extrajudicial statements to Leonard and Alanis were inadmissible hearsay and should been admitted at most on the issue of Williamss credibility and not for the truth of their contents. As defendant acknowledges, no such objection was raised below; he therefore asserts that trial counsel rendered ineffective assistance by failing to object to the admission of this evidence for all purposes, and to a related jury instruction permitting its consideration as substantive evidence of the matters asserted. (See CALJIC No. 2.13.)

Our holding that the admission of Leonards testimony violated the confrontation clause renders this argument moot with respect to Williamss statements to him. (But see fn. 2, ante.) The primary remaining question is therefore whether her statements to Alanis fall within Evidence Code section 1294, which provides in pertinent part that where evidence of a prior inconsistent statement by a preliminary hearing witness is introduced at that hearing, and the witness is unavailable to testify at trial, a videotape or transcript of the evidence introduced at the preliminary hearing may be admitted at trial. (Evid. Code,  1294, subd. (a).) Defendant contends that this statute does not justify the admission of Deputy Alaniss testimony here because (1) it permits only the reading of the preliminary hearing transcript containing the inconsistent statement, whereas here Deputy Alanis himself testified about the statement; and (2) if the statute were understood to permit the evidence here, it would violate defendants constitutional right to confront his accusers.

Defendants confrontation argument rests on California v. Green, supra, 399 U.S. 149, 158-159, which held that the admission of a witnesss prior inconsistent statements for the truth of their contents is constitutionally tolerable provided the witness is subject to cross-examination at trial. That decision, however, predated Crawford, which has been described as a revolutionary decision in the law of evidence. (People v. Pantoja (2004) 122 Cal.App.4th 1, 9.) Under post-Crawford confrontation clause jurisprudence, the crucial question is not whether an absent declarants statement falls within a settled hearsay exception or is attended by particular indicia of reliability, but whether it is testimonial and, if so, whether the defendant had a prior opportunity to cross-examine the declarant.

Here, the question whether the statement was testimonial is somewhat difficult in view of the variety of considerations that have brought to bear on that question in the wake of Crawford. The seemingly spontaneous character of the utterance favors a conclusion that it was not testimonial, but the fact that it was made to a police officer under circumstances presaging its eventual introduction into evidence favors a contrary conclusion. (See Crawford, supra, 541 U.S. at pp. 51-52 [quoting with evident approval amicus briefs formulation[] that statement may be testimonial when  made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial ]; People v. Rincon (2005) 129 Cal.App.4th 738, 757 [spontaneous statement to former gang member nontestimonial because it lacked formality and declarant could not have reasonably anticipated statement would be related to police or used in court]; Lininger, Yes, Virginia, There Is a Confrontation Clause (2005) 71 Brooklyn L.Rev. 401, 405 [statement to police officers presumptively testimonial if declarant knew he or she was speaking to police officer; prosecution may rebut presumption with strong showing that [nontestimonial] characteristics predominate over testimonial ones].) Nor is the question greatly illuminated by Davis, supra, ___ U.S. ___ [126 S.Ct. 2266]. On the one hand that case establishes that statements to police officers, even under interrogation, may be nontestimonial when not intended for use in an eventual trialspecifically, when the purpose of the questioning is to enable authorities to respond to an ongoing emergency. (Id. at p. ___ [126 S.Ct. at p. 2273].) On the other, it takes pains to warn that statements to police officers may be testimonial even when not made in response to interrogation: The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Id. at p. ___, fn. 1 [126 S.Ct. at p. 2274].)

Ultimately we need not determine whether the statements to Alanis were testimonial because, assuming they were, defendant had an adequate opportunity at the preliminary hearing to confront Williams with respect to them. The statements as set forth in a written report by Alanis were read to Williams, giving her a chance to deny them, which she did. She was then cross-examined by defense counsel on the subject, among others, of her possible conversation with a deputy by the name of Alanis . . . . Alanis himself then testified concerning the statements. Accordingly no confrontation clause violation can be found.

Defendant fares better in contending that the prosecution did not comply with Evidence Code section 1294 in introducing the statements at trial. Where the statutory conditions are present, the statute excepts from the hearsay rule (1) A videotaped statement introduced at a preliminary hearing or prior proceeding . . ., and (2) A transcript, containing the statements, of the preliminary hearing or prior proceeding . . . . (Evid. Code, 1294, subd. (a)(1) & (2).) Here this means that the prosecution could have been limited to reading the transcript of Deputy Alaniss testimony at the prior hearing. When it called Deputy Alanis to testify in person about Williamss statements to him, a hearsay objection would have been well taken.

It does not follow, however, that counsel rendered ineffective assistance by failing to raise such an objection.   In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.]  [Citation.] [T]here is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] Defendants burden is difficult to carry on direct appeal . . . .  Reviewing courts will reverse . . . only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.  [Citation.] [Citation.] (People v. Viray (2005) 134 Cal.App.4th 1186, 1212.)

Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation], the contention must be rejected. [Citation.] A reviewing court will not second-guess trial counsels reasonable tactical decisions. [Citations.] (People v. Kelly (1992) 1 Cal.4th 495, 520.) If the reviewing court concludes that counsels performance was in fact deficient, it will reverse the judgment only if the record further establishes a reasonable probability that, but for counsels unprofessional errors, the result would have been different. (Ibid)

These principles are fatal to any claim on direct appeal that counsel was ineffective in failing to raise a hearsay objection to the testimony of Deputy Alanis. The record suggests a possible tactical reason for counsels failure to object to this testimony: A desire to cross-examine Alanis on the stand before the jury, rather than leave the jury to consider only the cold preliminary hearing transcript. Under Evidence Code section 1294, subdivision (b), the party against whom such statements are offered may, at his or her option . . . cross-examine any person who testified at the preliminary hearing or prior proceeding as to the prior inconsistent statements of the witness. This entitled the defense to call Alanis to the stand to face cross-examination with respect to his preliminary hearing testimony. Counsel may well have preferred to simply let the prosecution call Alanis and subject him to cross-examination then. Certainly the record before us does nothing to dispel that possibility.

III. Prior Convictions

A. Background

Defendant contends that the trial court abused its discretion in permitting the prosecutor to elicit testimony from defendants former employer, Douglas Greene, alluding to defendants having sustained prior criminal convictions. The issue arose after defense counsel cross-examined Greene as follows: Q. And Mr. Lewis worked fromagain, the starting date was November 7th 2001 [] A. Yes. [] Q. through December 31st of 2001? [] A. Yes. [] Q. And he was not terminated prior to this incident for which he was arrested? [] A. No. The prosecutor then proposed in limine to introduce evidence that Greene fired defendant upon learning after defendants arrest that defendant had suffered more prior convictions than he disclosed on his employment application.

Defense counsel argued that this testimony was character evidence concerning a landslide of priors that we work[ed] hard to keep out. The prosecutor contended that counsel had opened the door to character evidence by confirming, through Greene, that defendant was not terminated prior to this incident for which he was arrested. He argued that this evidence was relevant only to show to the jury that . . . defendant hadnt done anything wrong while he had been working there, which was classic character trait evidence. The falsehood on defendants employment application contradicted this inference by showing that defendant had actually done something inappropriate and that was lie[] to him about the job which he wouldnt have gotten if he [had] disclosed that and thats relevant because it occurred prior to this incident.

The trial court asked defense counsel what the intended purpose of the question was, to which he replied that he wanted to establish that defendant had not been terminated prior to the alleged theft, in order to eliminate any idea that he might have committed the theft out of spite. He disavowed any intent to inject an issue of character. The court opined that counsel could have accomplished his avowed objective simply by establishing that defendant was still employed on the date of the theft: Just mention the date, thats my problem. I think there is an inference here that the defendant was a good employee.  

Defense counsel asked for any other way to clear that up than introducing evidence of prior offenses. He insisted that he did not intend to raise any character evidence and that he was not going to argue that he was in good character. The prosecutor replied that the bell has been rung and asserted that counsels intent was not relevant.

The court ruled that the witness could be asked his reasons for terminating defendant, but that no mention could be made of defendants being on parole. The jury then heard testimony from Greene that there was an untruth or misstatement on [defendants] job application in that he had acknowledged one criminal conviction, but police officers had informed [the witness] of more than one.

B. Discussion

We cannot accept that counsel opened the door to character evidence by alluding to defendants not having been terminated as of the date of the theft. The mere fact that a circumstance may reflect favorably on a defendants character does not mean that evidence of that circumstance may be answered with evidence of bad character. Counsel stated that the evidence was offered on the subject of motive, or more precisely, the lack of same. Respondent suggests that this statement itself establishes that character was in issue, because the absence of spite is itself a kind of character. Respondent has confused spite with spitefulness, and motive with character. Evidence that defendant was not the sort of person to seek to get even with an employer would indeed go to character. The evidence here had no such tendency. Its avowed purpose was to show that defendant had no reason to get even with his employer. That is not character evidence.

The court did not suggest that it disbelieved counsels explanation for the fateful question. It apparently embraced the prosecutors assertion that counsels intent was irrelevant. That is incorrect. Defense counsel was entitled to offer evidence tending to disprove motive. When evidence is offered for a proper purpose, but can also ground an impermissible inference, the remedy is either to sustain an objection and exclude the evidence, typically under Evidence Code section 352, or admit the evidence for a limited purpose, admonishing the jury only to consider it for that purpose. Here no objection was made, so there was no occasion to exclude the evidence. If the evidence had an incidental tendency to show good character, the remedy was a limiting instruction, not an opening of the floodgates to character evidence.

Further, the evidence adduced by the prosecutor to counteract the supposed inference of good character had little if any logical tendency to do so. The supposed pernicious inference arose from defendants apparent good standing with his employer on the date of the theft. The good standing arose from his apparently satisfactory performance in the job. The fact that the employer learned on some later date of a reason to regret hiring defendant had no tendency to detract from the apparently satisfactory nature of his performance. Defendants later dismissal might conceivably rebut the pernicious inference if it depended on some dishonest conduct in the course of the actual employment, but it did not; it depended on a misstatement in the job application, and indeed, it did not even appear that this reflected the employers real thinking. Although he answered Yes in chambers to the leading question whether defendant lied on his application, he also acceded to the prosecutors assertion that he would not have hired someone with defendants background in the first place. It therefore appears that he was fired not for the supposed misconduct of lying, but because had he told the truth, he would never have become an employee. How this casts any doubt on his on-the-job performance, and thus his character, is a mystery.

Finally, the trial court appeared to concede that defense counsel would not have opened the door had he merely adduced evidence that defendant was still employed on the date of the theft. Some of the relevant colloquy appears garbled in the transcript, but the court reportedly commented that counsel could have just mention[ed] the date, presumably meaning that the groundwork to infer an absence of spite could have been laid by asking whether defendant was still employed as of that date. But in logical effect, that is exactly what he did. Asking whether an employee had been terminated of a particular date is substantially equivalent to asking whether he was still employed on that date. To be sure, the employment relationship might been ended by other meansnotably death (not a possibility here) or resignationbut a mere allusion to termination hardly converts such testimony into a testimonial. Indeed, properly speaking it is not the employee but the employment that is terminated. Surely the door would not have been opened by counsels asking whether defendants employment had terminated on the date in question. The court therefore authorized an attack on defendants character because, instead of wording the question in the technically correct manner, counsel employed the widespread malapropism of asking whether defendant himself was terminated. It is absurd to say that counsel could, without fear of adverse consequences, ask whether the defendants employment had terminated on a particular date, but could not ask whether defendant had been terminated as of that date. Any heightened tendency of the word terminated to focus the jurys attention on the defendants presumptively satisfactory job performance is so miniscule as to scarcely justify an admonition, let alone throwing open the gates to evidence of prior convictions.

IV. Prejudice

The introduction of evidence in violation of a defendants right to confront witnesses requires reversal unless the reviewing court can say it was harmless beyond a reasonable doubt. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140; People v. Harrison (2005) 35 Cal.4th 208, 239.) Here we cannot say that this test is satisfied. Without Williamss reported statements to Leonard, there was no direct evidence that defendant knew of her check-cashing activities when he drove her to the three banks. There are a number of highly suspicious circumstances, including the money on defendants person, which closely approximated the proceeds of the two forged checks less $100, which Williams might be supposed to have kept for herself.[7] On the other hand, the defense might have been able to raise a reasonable doubt about the force of this evidence by pointing to alternative explanations for it. In the case of the cash, for instance, defense counsel asserted that defendant had just been paid, and alluded to a pay stub in evidence.

Another suspicious circumstance was defendants various denials of acquaintance with Williams at the time of their detention and her arrest. Those denials were amply shown to be false, but a jury might have been persuaded to entertain a reasonable doubt that they reflected consciousness of guilt, i.e., awareness of her check-cashing activities. Defendant might have simply wanted to avoid involvement in whatever trouble Williams was already in, as reflected in the outstanding warrant that led to her arrest and in the broken crack pipe that she dropped when detained.

Another challenging circumstance for the defense was the fact, as contended by the prosecution, that defendant had driven Williams to three successive Bank of America locations. The defense theory, however, was that Williams had gone to the first two banks with D. D. Smith, the man she reluctantly identified at the preliminary hearing as having furnished the checks. It is true that Williamss preliminary hearing testimony depicted defendant driving her to the first two banks, albeit without knowledge of her plans; but defense counsel attacked that testimony as a pastiche of half-truths intended to protect D. D. Smith.

This leaves Deputy Alaniss testimony that Williams told him defendant wanted her to lie in his defense. This too is potentially damning evidence, but not nearly as damning as the testimony of Leonard which, as we have held, the jury should not have heard. Again, that testimony supplied the onlydirect evidence of defendants knowing involvement in the check-cashing scheme. It is possible, even likely, that reasonable jurors would have found defendant guilty of at least one count based upon the circumstantial evidence alone. However, we cannot say beyond a reasonable doubt that they were bound to do so.[8]

Disposition

The judgment is reversed.

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RUSHING, P.J.

I CONCUR:

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McADAMS, J.

Mihara, J., concurring in the judgment.

While I agree with this result in this case, I write separately to delineate my own analysis of this important issue.

I. Background

Williams testified at the preliminary examination. The first question that deputy district attorney James Leonard asked her was Miss Williams, did you and I speak earlier today? Williams responded Yes, we did. Williams then testified that a third person had told her that the checks would be waiting for her in defendants car. She found the checks in defendants car, but defendant did not do anything to direct her attention to them. Leonard engaged Williams in the following colloquy. Q Did you tell me downstairs that Mr. Lewis gave the checks to you? [] A No, I didnt. [] Q You did not say that to me down in the basement of this building? [] A I told you those checks were just there. I told you. I didnt say he handed me anything. You asked me where I got them. I said they were already in the car, its what I said to you, sir. Williams denied that she had given any of the money from the checks to defendant. Her testimony was that he simply agreed to her request for a ride and took her to the locations she requested.

On cross-examination, defendants trial counsel elicited Williamss testimony that, the night before she cashed the checks, she had reached an agreement with this other person about getting some checks that would be there to cash. This third party had told her that the checks would be left for her in defendants car. Williams had retrieved the checks from defendants car and placed them in her pocket before she asked defendant to give her a ride. She did not mention the checks to defendant. Williams testified that the third party was a friend of hers named D.D. Smith. Williams denied that defendant had told her what to say if she testified.

On redirect, Leonard asked Williams if she had told Deputy Alanis that defendant had asked her to lie for him. Williams denied that she had made such a statement to Alanis. Leonard then called Alanis to testify. Alanis testified that Williams had made the following statement to him on January 14, 2002 (long before the preliminary examination): He wants me to lie for him. He wants me to commit perjury up in there. I aint goin there, hell no. He wants me to cover all this up for him. Like he wasnt involved in this shit. Yeah, right.

Williams was unavailable to testify at trial. Defendant did not object to Alanis testifying at trial about Williamss statement to him. Indeed, defendants trial counsel stated: I have no problem with that one. We are well aware of that one and its an adequate opportunity [for cross-examination] to deal with it. Thats not an issue. Alanis testified at trial that Williams initiated a conversation with him while he was transporting her to court. She told him: I got to come back next Friday . . . All of this bullshit is taking too long. I am getting hung up because my codefendant, shit, he wants me to lie for him. He wants me to commit perjury up in there. I aint going there, hell, no. He wants me to cover all of this up for him like he wasnt involved in this shit, yeah, right.

Defendants trial counsel did challenge the admissibility of testimony by Leonard about what Williams had told him during a conversation with him shortly before the preliminary examination. Defendant claimed that the admission of this testimony would violate his federal and state confrontation rights. Defendants trial counsel conceded that Leonard had informed him, during a 10-second conversation just before the preliminary examination, that Leonard had spoken to Williams and she had told Leonard that Lewis drove her to all three banks and she received the checks from Lewis. Leonard provided defendants trial counsel with none of the detail of that conversation. The details of Leonards conversation with Williams were disclosed to defendants trial counsel two days after the preliminary examination.

The prosecutor argued that there is not a Sixth Amendment issue because Leonards testimony was admissible under Evidence Code section 1291s former testimony exception. Counsel was informed of the conversation he had in order to cross-examine. The fact that he didnt want to question further on it was his choice at that time, but these issues are squarely addressed. The trial court agreed with the prosecutor that the evidence was admissible under Evidence Code section 1291 and overruled the defense objection.

Leonard testified at trial that Williams had told him she didnt want to say anything about anybody else. She kept repeating that she wanted to get on with what she called her program and she was going to have to go back to that neighborhood and she didnt want to have to deal with problems implicating or testifying about someone else like people like her cousin Ms. Morrison or other people in the neighborhood. Leonard told Williams that he just wanted to know who had given her the checks. Williams looked uncomfortable and eventually she said that Mr. Lewis drove her to each of the banks and when I asked her again how did you get the checks? and she said that Tim [Lewis] handed her the checks. Leonard also testified that he had told defendants trial counsel, in the hallway before we went in to the preliminary examination, that Williams had told him she received the checks from defendant. Leonard testified that he asked Williams at the preliminary examination whether or not she had just told [me] that she had gotten the checks from Mr. Lewis? He did not testify regarding her response.

II. Analysis

The Sixth Amendments Confrontation Clause provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. (Maryland v. Craig (1990) 497 U.S. 836, 845.)

The U.S. Supreme Court recently elucidated the parameters of the Confrontation Clause in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The Confrontation Clause is a procedural rather than a substantive guarantee. (Crawford, at p. 61.) It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. (Crawford, at p. 61.) The Confrontation Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (Crawford, at p. 59, fn. 9, italics added.) Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. (Crawford, at p. 59, italics added.) The U.S. Supreme Court found prejudicial error in Crawford because the ambiguity of the two [extrajudicial] statements made it all the more imperative that they be tested to tease out the truth. (Crawford, at p. 67.)

The issue here is whether Williamss testimonial, extrajudicial statement to Leonard was admissible at defendants trial in Williamss absence. It is undisputed that Williams was unavailable at trial, so the only question is whether defendant had a prior opportunity to cross-examine within the meaning of Crawford. The issue, which was not explicitly addressed or resolved in Crawford or in any other case that I have located, is whether the Confrontation Clause is satisfied by a prior opportunity to cross-examine the missing witness or whether there must also have been a prior opportunity to cross-examine the evidencethat is, the witnesss testimonial statement. Here, defendant clearly had a prior opportunity to cross-examine Williams, but he had no opportunity to cross-examine the evidence (her testimonial statement to Leonard) because it was not introduced at the preliminary examination (either through Williams or through Leonard). If the Confrontation Clause is not satisfied by a prior opportunity to cross-examine only the witness but not the statement, then federal constitutional error occurred here.

I am convinced that the admissibility of an absent declarants testimonial statement under the Confrontation Clause depends upon there having been a prior opportunity to cross-examine not just the declarant but also the statement. The U.S. Supreme Courts pronouncements strongly support this conclusion. The Confrontation Clause addresses the admissibility of evidence of statements by absent declarants, and its central concern is the rigorous testing of the