P. v. Kassem

 

 

 

 

 

 

 

 

Filed 5/21/13  P. v. Kassem CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(San
Joaquin)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   HASSON KASSEM,                           Defendant and Appellant.

C067909   (Super. Ct. No. SF116280A)

 

 

 

 

            A jury convicted defendant Hasson
Kassem of arson of an inhabited structure, but acquitted him of href="http://www.fearnotlaw.com/">attempted murder.  The trial court sentenced him to three years
in state prison.  Defendant contends the
trial court abused its discretion when it denied his request for an Evidence
Code section 402 hearing concerning the admissibility of a witness’s statements
to a police officer.href="#_ftn1"
name="_ftnref1" title="">[1]  We
conclude the trial court correctly determined that defendant’s concern
regarding the witness’s limited ability to speak English goes to the weight to
be accorded the evidence, not its admissibility.  We will affirm the judgment.

BACKGROUND

            Nageb Ali Abuzaid owned the El Amigo
Market in Stockton, and lived in one of the apartments above
the store.  Defendant had lived in
another apartment above the market and worked for Abuzaid from August 2009
until June 2010. 

            Around 2:00 a.m. on November 9, 2010, Stockton Police Officer Walt Vancil
observed the market on fire.  The flames
appeared to be coming from the door and, on closer inspection, Vancil observed
a pile of charred or burnt paper material in the lower right portion of the doorway.  As Vancil approached the market, defendant
and Abuzaid were standing a few feet apart near the front door.  Abuzaid seemed “pretty angry” and was yelling
at defendant. 

            Vancil instructed the men to go to
the park across the street.  As Vancil and
the men walked away from the building, Abuzaid said that “[defendant] fucking
burnt my store down.”  Vancil noticed “an
ashy particulate matter” that looked like “burnt paper” on defendant’s head,
clothing and shoulders, and his hands were black with soot and ash.  Abuzaid did not have any “ashy matter” on his
body or black soot on his hands.  Vancil
detained defendant to investigate whether he was involved with the fire.  He searched him and found a total of four
lighters in three different pockets.  Vancil
placed defendant in his patrol car. 

            Thereafter, Vancil took Abuzaid’s
statement.  Abuzaid, who emigrated from Yemen in 1996, spoke in English with an Arabic
accent.  Vancil had no problem
understanding Abuzaid because he was familiar with the accent from his
experience in the Persian
Gulf.  Abuzaid said he had known defendant for a
number of years.  Defendant had been his
employee and used to live in one of the apartments above the market, but
Abuzaid kicked him out about six months earlier.  Defendant had returned several times since
then to argue about being evicted and about a sum of money he claimed Abuzaid
owed him.  Around 1:30 a.m. that morning, defendant yelled up to Abuzaid
to open the store so he could go upstairs and go to bed.  Abuzaid told him to come back later when the
market was open, and then went back to bed. 
Shortly thereafter, he woke up when he smelled smoke.  Abuzaid looked out of the window and saw defendant
standing next to his car.  Abuzaid went
downstairs to confront him and to call 911. 
Defendant spoke to the operator and then Abuzaid did, exclaiming,
“[H]e’s a terrorist.  That guy, he fired
my store.” 

            After taking Abuzaid’s statement,
Vancil returned to his patrol car to speak to defendant.  When Vancil opened the door, defendant got
out of the car and said, “I did it, I started the fire, I’m guilty.  He kicked me out, I set the fire, I set the
fire.”  Defendant said he was angry with
Abuzaid for kicking him out of the apartment and for not paying him between
$12,000 and $20,000 that he believed Abuzaid owed him.  Defendant also said, “I am guilty for setting
the fire.  That bastard told me to go
live on the--to go fucking live on the street. 
I am guilty, but I am not a bad man.” 
Defendant said “he wanted to pay Mr. Abuzaid back.”  He explained he took paper trash out of a
nearby trash can and used one of his lighters to ignite the fire. 

            Stockton Fire Department Captain Tim
Enright investigated the fire and determined that it was deliberately set by
igniting ordinary combustibles by the door. 


            Defendant testified at trial.  He said he emigrated from Yemen in 1990 and
speaks sufficient English to communicate at work.  He denied starting the fire and said that the
market was already burning when he arrived. 
Defendant started banging on the wall underneath Abuzaid’s window.  The two men threw water on the fire, and
ashes fell on them.  Defendant claimed
Vancil asked them “who stopped the fire,” and he told Vancil that he had
stopped the fire, not that he started the fire. 


            At trial, Abuzaid confirmed that
defendant awakened him by banging on the building, shouting “fire,” and telling
him to get out.  Abuzaid denied many of
the statements Vancil attributed to him. 
He said he told Vancil that defendant worked with him, just not at that
time, and that everything was “fine” between the two of them.  When Vancil asked who started the fire,
Abuzaid testified he said, “I don’t know, but [defendant] is outside . . . you
can go and ask him.  [¶]. . . [¶]  Ask [defendant] what he saw and he can tell
you everything in detail.”  Initially he
conceded telling Vancil that defendant “fucking burnt my store down,” but
claimed he could not think at the time because he was distracted by the fire.  Thereafter he claimed he could not remember
making the statement to Vancil.  Abuzaid
denied telling Vancil that defendant caused him problems, that he was upset
with defendant, that he evicted him, or that he was having an argument with
him. 

DISCUSSION

            Defendant contends the trial court
abused its discretion in denying his request for a section 402 hearing
regarding the admissibility of Abuzaid’s statements to Vancil at the scene of
the fire. 

            Section 402 is a procedure for the
trial court to determine, outside of the jury’s presence, whether there is
sufficient evidence to sustain a finding of preliminary fact upon which the
admission of other evidence depends.href="#_ftn2" name="_ftnref2" title="">[2]  The
trial court has broad discretion in determining the admissibility of evidence,
and it is within the trial court’s discretion whether or not to decide
admissibility questions under section 402, subdivision (b) within the jury’s
presence.  (People v. Williams (1997) 16 Cal.4th 153, 196.)  â€œOn
appeal, a trial court’s decision to admit or not admit evidence, whether made in
limine or following a hearing pursuant to . . . section 402, is reviewed
only for abuse of discretion.”  (>Id. at p. 197.)

            Defendant argued in the trial court
that the statements were unreliable because “Abuzaid doesn’t speak enough
English to properly communicate with Officer Vancil.”  The prosecution responded that a section 402
hearing was not warranted because whether Vancil understood Abuzaid’s
statements correctly concerned the weight of the evidence, as opposed to its admissibility. 

            The trial court noted that Abuzaid
would be testifying through an interpreter because he felt more comfortable
doing so, but observed that “we’ve had so many examples here, undoubtedly he
speaks English to some degree, . . . he isn’t carrying on a grocery
store business in south Stockton in this day and age without speaking some
English, so it would be stupid to suggest otherwise, so undoubtedly he speaks
some English, and if he is going to testify here, however, through an
interpreter, . . . his statement here is going to be under oath, and
it’s ordinary testimony.  [¶]  So now what the D.A. wants to get in
. . . is going to be his prior inconsistent statements, . . . there
are always issues as to whether or not the hearer got it right, whether that
was what was really meant, whether it’s trustworthy or not, which statement is
to be believed . . . .” 
The trial court noted further that Vancil spoke English with Abuzaid,
because Vancil, despite his experience in the Gulf War, did not speak much
Arabic or Farsi.  “So the real question
would be, I suppose, whether somehow Abuzaid was able to speak English or not.
. . .  [I] just don’t think
that this qualifies as the ordinary type of 402 foundational type hearing that
would be necessary to get in a prior inconsistent statement, . . . ,
I agree, it’s a matter that goes to the weight rather than the admissibility of
Mr. Abuzaid’s statements, so I’m going to deny your
request . . . .” 

            The trial court did not abuse its
discretion in determining that defendant did not present a viable preliminary
fact that could be decided as a matter of law. 
Defendant posits that a section 402 inquiry should have been made into
whether Abuzaid could speak and understand English because Vancil may have “had
a motive to mislead or distort” Abuzaid’s statements in order to solve the
crime immediately.  But it is also
possible that Abuzaid, who recanted his incriminating pretrial statements to
Vancil, had a motive to minimize or distort the extent of his English language
skills in order to cast doubt upon the legitimacy of his prior statements.  Thus, whether Abuzaid’s English language
skills were so poor that Vancil could not have understood him was a factual
matter for the jury relating to the witnesses’ credibility.  It is the exclusive province of the trier of
fact to decide upon the credibility of a witness, and the truth or falsity of
facts upon which a determination depends. 
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)

            Defendant had ample opportunity to
cross-examine Abuzaid regarding his language skills, as well as to
cross-examine Vancil regarding whether he heard Abuzaid correctly.  Abuzaid spoke at least enough English to
conduct his business in Stockton, and Vancil claimed to easily understand
Abuzaid’s accented English due to Vancil’s time in the Middle East.  Whether Abuzaid made the inconsistent
pretrial statements, and whether Vancil heard them correctly, was for the jury
to decide as part of its function in determining whether Abuzaid’s trial
testimony was more reliable than his pretrial statements.  The jury had Abuzaid before it and could
observe his demeanor and the nature of his testimony as he denied or tried to
explain away the inconsistencies between his statements.  The jury was in as good a position to
determine the truth or falsity of the prior statements as it was to determine
the truth or falsity of the inconsistent
testimony in court.  (>People v. Ochoa (2001) 26 Cal.4th 398,
445-446, abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) 

            Defendant fails to
establish that the trial court abused its discretion in denying his request for
a section 402 hearing concerning the extent of Abuzaid’s ability to speak
English. 

DISPOSITION

            The judgment is
affirmed.

 

 

 

                                                                                                          MAURO                        , J.

 

 

We concur:

 

 

                       RAYE                         , P. J.

 

 

                       BLEASE                     , J.