P. v. Ramirez

Filed 8/28/07 P. v. Ramirez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 was convicted by a jury of receiving or possessing stolen propertya carin violation of Penal Code section 496d,[1]grand theft of the cars tires and wheel rims in violation of sections 484/487, subdivision (a), and resisting a peace officer in violation of section 148, subdivision (a)(1). Defendant was removing the tires and wheels from the car when he was seen by police and arrested, and, he asserts, he was to be paid $20 by his neighbor for performing this task.

On appeal, defendant contends that the trial court erred by excluding in limine certain witness statements based on the hearsay rule. Defendant contends the statements were not hearsay but instead were circumstantial evidence of his state of mind and lack of knowledge that the car had actually been stolen. He further contends that he was deprived of the constitutional right to a present a defense by exclusion of the evidence and that he received ineffective assistance of counsel. He also argues that it was error under section 496, subdivision (a), for him to have been convicted of both receiving and stealing the same property, a contention that the People concede. We reject defendants contentions regarding the excluded witness statements but we modify the judgment to strike the theft conviction. In all other respects, we affirm.

STATEMENT OF THE CASE

I. Factual Background[2]

Sometime between 9:30 p.m. on February 18, 2006, and 2:00 a.m. on February 19, 2006, a 1988 Chevy Caprice was stolen from Michael Baca. Baca had parked the car, which was blue in color, in a public parking lot on Third Street in downtown San Jose while he was inside a nightclub.

Around 1:00 a.m. on February 19, 2006, Maria Alvarado looked out the kitchen window of her residence located at the rear of 37 Union Street in San Jose. Defendant lived with his cousin in another house located at the front of the same property address. When Ms. Alvarado looked out the window, she saw a dark colored car she did not recognize pull into her neighbors driveway at 47 Union Street. She saw the lights of the car and then two young male figures standing outside the car. The men were speaking to each other in Spanish, a language Alvarado also speaks. Alvarado briefly went outside but she could not identify the men or hear just what they were saying.

According to defendant, he arrived home on the night of February 18, 2006, and went to sleep in the living room between 10:00 and 11:00 p.m. His cousin, who then had a new baby, saw defendant sleeping several times throughout the night when she got up to feed the baby. Defendant got up around 7:30 the next morning. Shortly after that, according to defendant, Herson Torres, a neighbor who at some point lived next door at 47 Union Street, knocked at the door and told defendant he would pay him $20 for helping to remove two rear tires and wheel rims from a car. The car, Bacas blue Chevy Caprice, was parked in the driveway behind 47 Union Street where Torres had previously lived.

Claudia Benitez lived at 55 Union Street, and she also owned the property at 47 Union Street where Torres used to live with Benitezs brother. She got up around 7:30 on the morning of February 19, 2006. Between 8:00 and 10:00 that morning, she saw defendant next to the blue car, which she did not recognize. Defendant was wearing gloves and dismantling the carremoving the tires, ripping out the seats, and doing things in the trunk. After a time, Ms. Benitez went out to the store for about an hour but when she returned, she saw that defendant was still working on the carspecifically the tires and the front dashand walking back and forth to his house picking up tools.

Benitez watched defendant near the car for about the next hour. She called her parents and her brother to find out if the car belonged to them or if they knew to whom it belonged. When she got no information about the car from them, Benitez and her husband decided to call the police. After the police were called, Benitez stopped constantly watching the car. Before the police got there, she saw Torres, whom she knew as her former tenant, her brothers good friend, and the owner of a grey Chevy Caprice, drive up and approach the blue car.

Police responded to the scene after receiving an anonymous telephone call reporting a possible stolen vehicle and possible people stripping it. When the police arrived, they saw defendant and Torres next to the blue Chevy Caprice, both working on it wearing gloves. Defendant was crouching next to the right front wheel, holding it. An officer directed the two men towards him, stating that he wanted to speak with them. Torres stayed in place and was handcuffed. Defendant, who was on probation but had failed to report, initially started walking away and then attempted to flee from the officers. The officers chased defendant on foot and in a patrol car, finally catching up to him. They put him in a control hold, handcuffed him, and arrested him.

After defendant and Torres were arrested, an officer examined and photographed the blue Chevy Caprice and noticed that its rear license plate had been removed, Officers also saw that the rear tires and rims which had been removed from the blue Caprice were sitting in the back seat of Torress grey Caprice, then parked where he had left it near the blue Caprice. According to defendant, the tires were placed there not by him but by Torres.

When Baca was later able to retrieve his car, he saw that the drivers door and trunk locks were broken, the steering column and shifter were broken, the rear wheel tires and rims had been removed and the rims were damaged, the license plate had been removed, the stereo was missing, and the back seats were ripped out. Baca was also missing some items of personal property from inside the cara portable navigation system (GPS), a pair of Air Jordan shoes, and a pair of Gucci sunglasses.

II. Procedural Background

After waiving his right to a preliminary examination, defendant was charged by information with receiving stolen propertythe carin violation of section 496d (count one), grand theft of the cars tires and rims, which exceeded $400 in value, in violation of sections 484 - 487, subdivision (a) (count two), and resisting a peace officer in violation of section 148, subdivision (a)(1). The information further alleged that defendant had suffered a prior felony conviction within the meaning of sections 667, subdivisions (b) -(i), and 1170.12, for burglary in violation of sections 459 - 460, subdivision (a).

At trial, the court heard various in limine motions from both sides. One of those was the Peoples oral motion to exclude evidence of statements assertedly made to defendants housemates by Torres on the basis of hearsay. Those statements included Torres asking the housemates on the morning of February 19, 2006, when he knocked on defendants front door whether defendant was at home and stating that he would pay defendant to come out and work on this car. Defendant argued against the motion, asserting that the witnesses statements about what Torres had said to them went to the defense of knowledge, i.e., they supported that defendant did not know that the vehicle was stolen; that he was simply hired to do some work. And that is the heart of the defense here. In response to the courts inquiry to defense counsel about how the hearsay objection might be overcome, counsel responded that she didnt have a way around the hearsay [rule] directly, . . . other than [that the proffered testimony] goes to the defense that [defendant] was working on this vehicle because [he] was [being] paid. The court granted the Peoples motion, excluding testimony by defendants housemates regarding statements Torres had made to them based on the hearsay rule.

Defendant then argued that the housemates ought to be able to testify to Torress statements to them to corroborate defendants own testimony, should he take the witness stand, that Torres came to his door looking for him and offered him $20 to remove the tires or work on the car. Defendant again urged that this testimony was relevant to the issue of his state of mind and his lack of knowledge that the car had been stolen. The People responded that they had no objection to defendant testifying as to his own state of mind but that testimony by the housemates of Torress statements to them was still hearsay and that no exception applied.[3] The court agreed with the People and ultimately ruled that if defendant were to testify, he could relay incidents that affected his state of mind, including what Torres had said directly to him in his presence under the state-of-mind exception but that the housemates could not testify as to statements made by Torres to them.

Defendant took the stand at trial and testified that Torres came to his door looking for him on the morning of February 19, 2006, and said that he had a job for defendantremoval of some rims of a car that was in the driveway behind where Torres had lived, for which defendant would be paid $20.[4] Contradicting the testimony of Claudia Benitez, defendant further testified that he never went or even looked inside the blue Caprice while he was removing its tires and rims. He also testified that after Torres hired him to remove the tires and rims, Torres left and returned with two other tires, which defendant and Torres then put on the blue Caprice in place of those that had been removed. He further testified that the reason he ran and resisted the police officers was not because he was doing anything wrong with respect to the blue Caprice but because he knew he was on probation and had failed to report and that he would consequently be arrested. According to defendant, notwithstanding the broken car locks and missing license plate, he did not know the blue Caprice had been stolen and he was only doing the job Torres had hired him to do. He believed that Torres had had legal access to the car.

Defendant waived a jury as to the prior conviction allegation and he admitted having violated probation, a violation that was alleged by separate petition but consolidated with the other charges for sentencing. The jury then found defendant guilty of counts one, two, and threereceiving stolen property, grand theft, and resisting a peace officerand the court found true the prior strike allegation. Defendants Romero[5] motion was later denied and he received a four-year prison sentence, which was the mid-term on count one, doubled as a result of the strike; the same term on count two, which the court stayed under section 654; and 30-days in county jail for count three, credited for time served, for an aggregate four-year prison term.

This appeal from the judgment of conviction followed.

DISCUSSION

I. The Trial Court Did Not Abuse its Discretion in Excluding the Witness Statements

Defendant contends that the trial court erred in excluding the testimony of his housemates to the effect that on February 19, 2006, Torres knocked on the door looking for defendant and relayed to them that he would pay defendant $20 to remove the tires and rims from the blue Caprice. Defendant asserts that this evidence was not hearsay because it was not being offered for the truth of the matter; it was instead being offered as circumstantial evidence of defendants state of mindhis lack of knowledge that the car was stolenand to explain his subsequent conduct.[6] He further contends that the exclusion of this evidence deprived him of his constitutional right to present a defense at trial and that the People cannot show that the error in this case was harmless beyond a reasonable doubt under the standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24. He finally contends that he received ineffective assistance of counsel for his trial attorneys failure to have articulated that the testimony was being offered for a non-hearsay purpose.

Evidence Code section 1200, subdivision (a) provides that hearsay evidence 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. The statute further states that [e]xcept as provided by law, hearsay evidence is inadmissible. (Id., subd. (b).)

Defendant argues that the housemates statements were not being offered for the truth of the matter asserted (that Torres actually intended to pay [defendant] $20 but as an explanation of his state of mind and conduct (the reason [he] was working on the car was because he believed he was going to get paid.) Therefore, so the argument goes, the statements were not hearsay. We reject this contention and conclude that the proffered statements did constitute hearsay evidence under Evidence Code section 1200 and that the trial court was right to exclude them.

A statement is hearsay if it is introduced to prove the truth of the matter stated expressly, or the truth of the matter stated by implication. (People v. Douglas (1990) 50 Cal.3d 468, 514.) Here, defendant contends that the statements made by Torres to defendants housemates were not offered for their truth, which he frames as the fact that Torres intended to pay defendant $20 to remove the tires and rims from the blue Caprice. But the truth of the matter that would be asserted by the witnesses proffered statements, whether expressly or by implication, was the fact that Torres was going to pay defendant for performing this task and that that was the reason he was doing it. The purpose of the testimony was therefore for its truth, which happened to corroborate defendants own testimony that Torres had independently made the same statements to him.

Even if the witness statements were not offered for the truth of the matter asserted, there is an even bigger flaw in defendants argument that the statements were not hearsay and were instead circumstantial evidence relating to his state of mind or lack of knowledge that the car was stolen. Defendant has not established in the record that he heard the statements made by Torres to his housemates or that they relayed the contents of those statements to him. The record thus does not support that the statements could have even affected defendants state of mind or his subsequent conduct. Therefore, they cannot be characterized as circumstantial evidence relating to his state of mind.

There is yet another flaw in defendants analysis. He argues that the witness statements supported his defense of lack of knowledge that the car was stolen. Indeed, knowledge that the subject property was stolen is an element of the crime of receiving stolen property that must be proved by the People. ( 496, subd. (a); CALCRIM No. 1750.) But lack of knowledge that the car was stolen does not logically follow from the fact that defendant was going to be paid, or thought he would be paid, to remove its tires and rims. The two concepts are not mutually exclusive in that payment for the job does not necessarily relate to or vitiate defendants knowledge that the car was stolen property. [A]n out-of-court statement is not made admissible simply because its proponent states a theory of admissibility not related to the truth of the matter asserted. . . . The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute. (People v. Bunyard (1988) 45 Cal.3d 1189, 1204.)

We conclude that the statements were not relevant; they were not evidence of and did not reflect the defendants lack of knowledge that the car was stolenthe issue in dispute. Defendant could have been hired by Torres to remove the tires and rims while at the same time having knowledge that the car was stolen. Thus, contrary to defendants contentions, the particular statements at issue do not go to a relevant aspect of defendants state of mind or explain an aspect of his conduct that would vitiate his knowledge that the car was stolen.

Even if defendant were correct that the excluded testimony was not hearsay, the exclusion of the witness statements was not prejudicial. Defendant himself was allowed to testify that Torres came to his door on the morning of February 19, 2006, and offered him $20 to remove the tires and rims from the blue Caprice. That Torres said the same thing to defendants housemates would not have added new information for the jurys consideration. At most, it would have corroborated defendants own testimony. The jury heard undisputed testimony from him that Torres had offered to pay defendant to remove the tires and rims and it found beyond a reasonable doubt that defendant knew the car was stolen anyway. The jury also heard all the uncontroverted evidence about the condition of the car and obviously concluded in spite of the fact that defendant was going to be paid $20 that he knew the car was stolen. And the jury also heard the testimony of Claudia Benitez, who said that she saw defendant dismantling the car, not just removing the tires and rims. It is not therefore not reasonably probable in light of the entire record that a result more favorable to defendant would have been reached if the witness statements had been admitted into evidence.[7] (People v. Watson (1956) 46 Cal.2d 818, 836-837.)

Defendant also claims that he received ineffective assistance of counsel because his lawyer did not articulate a non-hearsay purpose for offering the witness statements. An ineffective assistance of counsel claim requires a showing that counsels action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) [T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings. (People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Weaver (2001) 26 Cal.4th 876, 961.) This means that the defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to [the] defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations.]  (People v.Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland, supra, 466 U.S. at p. 686.)

The first element of an ineffective assistance claim requires a showing that counsels representation fell below an objective standard of reasonableness. [Citations.] (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland, supra, 466 U.S. at p. 688.) In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny . . . and must view and assess the reasonableness of counsels acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act. [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1212.)

Further, [i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation. (People v. Scott, supra, 15 Cal.4th at p. 1212.)  It is against this backdrop that we examine defendants claim of ineffective assistance of counsel.

The crux of defendants argument here is that if counsel had articulated a non-hearsay purpose for the admission of the witness statements, the evidence would have been properly admitted and he would have received a more favorable result. We have already concluded that the proffered testimony was hearsay and that it was not circumstantial evidence of the defendants state of mind or an explanation of his conduct such that his knowledge that the car was stolen would have been vitiated had the jury heard the testimony. We have also concluded that even if the court erred, any such error was not prejudicial. This leads us to the further conclusion that with respect to his ineffective assistance of counsel claim, defendant has failed to meet his burden of showing either that counsels performance was deficient or prejudicial.

II. The Theft Conviction Must be Stricken

Defendant rightly contends that it was error for him to have been convicted of both stealing and receiving the same stolen property under section 496, subdivision (a), a point the People concede. This subdivision provides in pertinent part that no person may be convicted both pursuant to this section [governing the crime of receiving stolen property] and of the theft of the same property. ( 496, subd. (a), 2d par.) The California Supreme Court has repeatedly cited this principle and construed this language according to its plain terms, noting that it is a fundamental principle that one may not be convicted of stealing and of receiving the same property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757; see also People v. Allen (1999) 21 Cal.4th 846, 857; People v. Garza (2005) 35 Cal.4th 866, 879.)

The People also observe that the record here does not support convictions for both receiving stolen property and grand theft of the same property notwithstanding section 496, subdivision (a), since the evidence does not show that defendants commission of the first crime was separate in time and therefore disconnected from his commission of the second. (People v. Strong (1994) 30 Cal.App.4th 366, 374 [where crime of larceny of car had been fully completed, subsequent act of driving the car without owners consent is separate crime for which defendant may also be convicted in spite of section 496, subdivision (a)].)

Accordingly, we will direct that defendants conviction on count two of grand theft be stricken.

DISPOSITION

The trial court is directed to modify the abstract of judgment to strike the conviction on count two for grand theft in violation of Penal Code sections 484/487, subdivision (a), and to forward the modified abstract to the Department of Corrections. As so modified, the judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] We take the facts from the trial testimony.

[3] The record is unclear at best as to whether defendant himself heard Torres make the statements to his housemates. And there was no offer of proof as to the housemates having told defendant what Torres had allegedly said to them. Similarly, there was no evidence or offer of proof to the effect that defendant acted on the statements allegedly made to his housemates by Torres, as opposed to those statements made directly by Torres to defendant, about which he did testify.

[4] The court overruled the Peoples continuing hearsay objection to the testimony about what Torres had said to defendant based upon its perceived application of the exception for defendants state of mind and for his subsequent actions, and allowed the testimony but limited its admission to that non-hearsay purpose.

[5] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[6] In asserting that the evidence was not hearsay, defendant expressly affirms that he is not relying on the state-of-mind exception to the hearsay rule codified at Evidence Code section 1250. Indeed, he could not rely on this exception because under the statute, the state-of-mind exception applies to 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). (Evid. Code, 1250, subd. (a), italics added.) The statements defendant proffered were not statements made by him as the declarant but rather statements made by Torres to the defendants housemates. In other words, Torres was the declarant but under defendants contentions, it was his own state of mind, not Torress, which was at issue. Therefore, the statutory state-of-mind exception to the hearsay rule does not apply to the witness statements.

[7] As noted by respondent, defendant did not argue below that the evidentiary ruling violated his federal constitutional right to present a defense. We need not decide whether this issue has been waived as a result because we conclude in any event that there is no prejudice that would require reversal under Chapman v. California, supra, 386 U.S. at page 24.