P. v. Rodriguez

Filed 10/11/07 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

It is ordered that the unpublished opinion filed herein on September 27, 2007 be modified in the following particulars only:

Delete section 4. b. on pages 13 and 14 and replace it with the following:

b. Hearsay

We also reject defendants claim the statement was inadmissible hearsay because it did not qualify as a declaration against penal interest under Evidence Code section 1230 and did not fall under the coconspirator exception under Evidence Code section 1223. Defendant made a motion in limine objecting to admission of the testimony. During the hearing on the motion the court confirmed with defense counsel that he was not really objecting to [the statement] within the meaning of the [Evidence Code section] 1223 exception . . . .  This is strictly a prior inconsistent statement, lack of reliability, . . . Roberts[-]type analysis and objection by the defense. (Italics added.) After agreeing Crawford did not apply, defense counsel responded, [s]o we are back to . . . Roberts. The court asked, Thats the crux of your argument? Counsel affirmed, Yes. And I acknowledge that co-conspirator exception under Evidence Code section 1223 is a well grounded exception under . . . Roberts; however, it is the adequate indicia of reliability that we are dealing with. (Italics added.) The court took the matter under submission but later decided to admit the statement.

When Gray testified that Tovar had told him it was defendants idea to rent the boat, defendants lawyer did not object. The next day, in a conference in chambers, defense counsel reminded the court of his in limine motion to bar the testimony and stated he argued hearsay, confrontation, Crawford . . . and . . .  Roberts. Inherently unreliable. . . .  [] Yesterday, I intentionally did not object because I did not want . . . to add more attention to it. So, I just was hoping that the court would deem my initial objection as a continuing one. The court ruled that technically, the objection [was] not timely, but thought there had been a discussion during the pretrial hearing that defendant intended to preserve his objection and it had allowed it. Therefore, the court waived any timeliness issue regarding the objection.

The record is ambiguous. It appears, based on statements during the hearing on the motion, that defendant limited his hearsay objection to Roberts inherent unreliability rule. After the testimony when defendant sought to confirm he had a continuing objection, the court allowed it and dispensed with any timeliness problem. However, the issue is not timeliness but the substance of the objection that we are considering. In our view the objection was limited, but based on the imprecise reference to hearsay in the posttestimony request for a continuing objection, we will consider the claim.

Even if the testimony was improper hearsay, however, its admission was not prejudicial. Aside from this testimony, there was evidence that the day before the murder, defendant went with Tovar to rent the boat. He was present during the lengthy period during which every possible problem with the boat, including expired tags and a malfunctioning brake light and turn indicator, was remedied and when Tovar requested a boat cover. Defendant asked about using the boat at night. Defendant also bragged to Garrity that he had helped to plan the murder, including renting the boat and buying chain and fasteners used to wrap the body before it was dumped into the ocean.

Additionally, defendant had Tunes car windows tinted just three days before the murder. Then, the day before Tovar killed Espeleta defendant insisted Tune refuse to let Tovar borrow her car, stating Tovar was going to do something stupid, harm a pregnant woman. The day of the killing, defendant went with Tovar to Home Depot where he bought Chem Dry and Tovar bought a tarp and chain fasteners. The boat owner testified the boat was completely clean when returned, an unusual event. And police found a package of locks in Tunes car and the wrapping from another package in the boat.

This was more than sufficient evidence to convict without Grays testimony. Thus, the admission was harmless and not a basis for reversal. Absent fundamental unfairness, state law error in admitting evidence will be deemed prejudicial only where it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.] (People v. Partida (2005) 37 Cal.4th 428, 439.) Based on the other evidence, it is not reasonably probable defendant would have obtained a more favorable result had Grays statement been excluded.

This modification does not change the judgment.

The petition for rehearing is DENIED.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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