P. v. Mays

Filed 6/27/07 P. v. Mays CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Warren P. Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Pam Ratner-Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Boe Mays appeals from the judgment granting him formal probation[1] after a jury convicted him of possessing methamphetamine, taking and driving a motor vehicle, and resisting a police officer.[2] (See Health & Saf. Code,  11377, subd. (a); Veh. Code,  10851, subd. (a); Pen. Code,  148.) A subsequent court trial found that Mays was on conditional release from other felony charges when he was found in possession of the methamphetamine. (See Pen. Code,  12022.1, subd. (b).)

Mays contends on appeal that the trial court erred when it excluded certain testimony by Christiana Sanchez, a defense witness. As we hold that no evidentiary error occurred, the judgment is affirmed.

FACTS

On May 17, 2006, officers executed a search warrant on Mays residence. They found Mays sleeping in a bedroom and a baggie containing 4.21 grams of methamphetamine, along with a box of sandwich bags and a few such bags with burned corners.

Two weeks later, Tim Curry, Ken Boedeker, Jeff Palomo and Christiana Sanchez planned a weekend fishing and sailing trip on Boedekers boat off of Coronado Island. While preparing to leave his home for this trip, Palomo encountered Mays, a friend for the past 10 years. He invited him along, driving the two of them to the marina in Currys truck.

After one night on the boat together, Boedeker and Mays were arguing, and everyone was uncomfortable with the situation. It was decided that Mays should depart, and at the next fuel dock, he was put ashore. The group then spent the remainder of the trip sailing and relaxing.

On Sunday, the group returned to where Currys truck had been parked to discover it missing. This was the vehicle with which Palomo drove to the marina with Mays. After reporting it stolen or missing, Palomo, Curry, and Sanchez returned home in Sanchezs car.

Two days later, a police officer, Robert Haefner, observed Mays driving a truck out of a storage locker unit. The truck matched in every particular with the description given by Curry and Palomo as Currys missing truck. Haefner attempted to stop the truck and question Mays, who refused to comply with any of Haefners requests or demands but eventually stepped out of the cab, called the officers names and asked them to shoot him. The officers had to tackle him to get him on the ground to be handcuffed.[3]

Mays defended against the charges with the explanation that he merely borrowed the truck, thinking it was Palomos. According to Mays, Palomo told him while they were en route to the marina that if he didnt like the boat trip, he could take [his] carmeaning Currys truckback home. This belated explanation was confirmed by Palomo at trial although it directly contradicted his own statements to both the officers and the defense investigator who interviewed him before trial.

Mays called Sanchez as a defense witness and questioned her about a telephone call he made to her on the Monday after the boating trip. In that phone conversation, they discussed the truck. Sanchez was not allowed to reiterate Mays actual statements to her as they were hearsay, but she was permitted to testify that Mays phoned her and they discussed the truck on the Monday after that weekend.

DISCUSSION

The Sanchez-Mays Phone Conversation

Mays now contends the trial court erred when it ruled the actual statements made to Sanchez during the telephone conversation were hearsay and thus, inadmissible. He now argues the statements evidenced his mental intent to return the truck, and therefore fell under the established exception to the hearsay rule found in Evidence Code section 1250.[4] Without the details of that conversation, the only evidence of his intention to return the truck was his own testimony. Had it been corroborated by Sanchezs testimony, he would have prevailed at trial, he argues.

Mays concedes the trial court permitted him to inquire whether the phone conversation between Sanchez and him dealt with the truck. However, he argues this was insufficient: The jury needed to hear specifically that he intended to return the truck before he was arrested in it.

When the prosecutor objected to the direct examination question posed to Sanchez as to the details of Mayss statement, he argued the basis for the objection was that the statements were hearsay. The defense responded that they were nonhearsay, but was unable to provide any explanation that would make them relevant if nonhearsay. When the court pointed out the irrelevancy unless submitted to prove the truth of the statements contents, the defense agreed with the court.

The defense waived the issue by agreeing with the trial courtand by failing to provide any exception to the hearsay rule by which the statements could be admitted. (See People v. Livaditis (1992) 2 Cal.4th 759, 778-780.) The defense failed to make any offer of proof for the statements admission and thus waived the issue entirely.

Assuming arguendo the issue was not waived, it fails on the merits. If we accept as true that Mays telephoned Sanchez and told her that he intended to return the truck some time in the future, it might have comprised a statement of his intent to return the truck, but it was irrelevant to these charges. He was not charged with stealing the car with the intent to permanently deprive the owner (see Pen. Code,  487, subd. (d)(1)); he was charged with taking and driving a motor vehicle without permission under Vehicle Code section 10851, subdivision (a). This provision requires only that the person taking the vehicle do so with [the] intent . . . to . . . temporarily deprive the owner of . . . possession of the vehicle . . . . (Italics added.) Thus, whether the statement was admitted and whether the jury accepted it as truthful corroboration of his own testimony that he intended to return the truck at some time, he was still guilty of the offense. Accepting for arguments sake that the statements fell within a valid exception to the hearsay rule, it still would not have led to any more favorable result.

The judgment is affirmed.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

FYBEL, J.

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[1] One of the conditions of that probation was that Mays had to serve a year in the county jail.

[2] Originally, the methamphetamine count was charged as possession to sell, but the jury returned a verdict only as to the lesser included offense of simple possession. The jury acquitted Mays of another count of possessing methamphetamine about two weeks after the first count of possession.

[3] Inside the cab, the officers found a jacket that had a gram of methamphetamine in its pocket. Although charged with a count of simple possession of methamphetamine, the jury acquitted Mays of this crime, accepting his testimony that the jacket did not belong to him.

[4] Evidence Code section 1250 provides: (a) Subject to Section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not inadmissible by the hearsay rule when: [] (1) The evidence is offered to prove the declarants state of mind, . . . at that time . . . when it is itself an issue in the action; or [] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

Evidence Code section 1252 makes a statement inadmissible . . . if the statement was made under circumstances such as to indicate its lack of trustworthiness.