P. v. Sanchez
Filed 7/18/14
P. v. Sanchez CA5
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TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
FELIPE GUERRA SANCHEZ,
Defendant and
Appellant.
F064627
(Super.
Ct. No. F11900329)
APPEAL from
a judgment of the Superior Court of Fresno
County. Edward Sarkisian, Jr.,
Judge.
Rebecca P.
Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez, Lewis A. Martinez, and Charity S. Whitney, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In November 1985, the dead body of
Carmen Achutegui was discovered in a field outside the town of San
Joaquin. Evidence at the scene led
authorities to believe she had been run over by a car. Felipe Guerra Sanchez was identified as a
suspect in the ensuing homicide investigation, but police were never able to
locate him. The crime went unsolved for
nearly 23 years until Sanchez was found working in Manteca under an assumed
identity.
In 2008, investigators from the
Department of Motor Vehicles (DMV) arrested Sanchez on suspicion of identity
theft. When questioned about the death
of Ms. Achutegui, Sanchez made a series of false and contradictory statements
before claiming he struck the victim with an automobile while driving
drunk. He was eventually brought to
trial on a murder charge in 2012.
The prosecution built its case
around Sanchez’s unrecorded confession at the time of his arrest and DNA
testing which indicated that he had sexual intercourse with the victim prior to
her demise. The murder theory was
further supported by testimony from retired law enforcement officers who
provided details about the information they had gathered before the case went
cold. There was also evidence of
jailhouse conversations between Sanchez and his brother that were highly
suggestive of a witness tampering plot, and eyewitness accounts from
individuals who heard Sanchez make incriminating statements on the night of the
killing.
Sanchez was convicted of first
degree murder and received a prison sentence of 25 years to life. His appeal of the conviction challenges two
evidentiary rulings by the trial court.
The first issue concerns the exclusion of
witnesses who were deceased at the time of trial. Sanchez also claims the admission of certain
testimony by one of the investigating officers violated his rights under the
confrontation clause of the Sixth Amendment to the United States
Constitution. We find no error in the
trial court’s rulings, nor any infringement of appellant’s constitutional
rights.
As for the sentencing phase of the
proceedings, Sanchez contends the trial court erred by failing to award him
presentence conduct credits. Respondent
appropriately concedes this issue, but disagrees with Sanchez about the amount
of time to which he is entitled. Both
parties miscalculate the relevant numbers.
Nevertheless, Sanchez’s sentence must be modified to reflect an
additional 626 days of conduct credit against his prison term. We affirm the judgment as so modified.
STATEMENT OF FACTS
1985 Homicide
Investigation
The investigation into the victim’s
death began on the morning of November 8, 1985.
Pete Chavez, then a homicide detective for the Fresno County Sheriff’s
Department, responded to a report of a body found on the outskirts of San
Joaquin, a rural community located in the western region of the county. A deceased woman, estimated to be in her 30s,
had been discovered lying face down in a field next to a dirt road. She appeared to have been run over by a car.
Ralph Preheim, the sheriff’s
criminologist, processed the scene. This
entailed photographing the victim and her surroundings, taking measurements of
fresh tire tracks left near the body, and collecting
initial impact to be an area in the road where investigators found a shoe and
fragments of glass. There were
footprints and tire tracks leading into the field where the victim lay. The tire tracks extended beyond the
suggested the woman had been run over twice; once when the vehicle entered the
field and again as it reversed back out onto the road. A second shoe was found next to the body, as
was a purse containing approximately $64 in cash.
Detective Chavez spoke to a witness
at the scene who recognized the victim from a local bar called La Pantera Azul.
The owner of the bar helped police
identify the decedent as Carmen Achutegui, also known by the nickname “Cuchi
Cuchi.†According to some witnesses, Ms.
Achutegui was reputed to be a prostitute.
Statements from employees and
patrons of La Pantera Azul placed Ms. Achutegui at the bar in the early morning
hours of November 8, 1985. A waitress
remembered seeing her at approximately 1:00 a.m., one hour before closing
time. Other witnesses observed Ms.
Achutegui conversing with a man whom police later identified as Felipe Sanchez.
Further investigation revealed that
Sanchez had been staying with friends in a trailer located a few blocks away from
La Pantera Azul. Two of the trailer’s
occupants told Detective Chavez they had last seen Sanchez in a drunken state
on the morning of Ms. Achutegui’s death.
The men recalled waking up in the middle of the night to find Sanchez
vomiting in the restroom and saying that he needed to leave town because he had
killed two women. The investigating
officers never found a second homicide victim, nor did they succeed in locating
Sanchez.
2008 Identity
Theft Investigation
In June 2008, the California DMV discovered
that two men, each purporting to be Jose Manuel Rodriguez, were simultaneously
using the same social security number.
It was determined that the real Jose Manuel Rodriguez lived in
Fresno. The unauthorized use of Mr.
Rodriguez’s information was traced back to Sanchez, who was then working for a
trucking company in Manteca.
DMV investigators arrested Sanchez
in October 2008. After waiving his
unrecorded interview during which he was asked about the death of Carmen
Achutegui. Sanchez admitted being at La
Pantera Azul on the night in question and told the investigators that Ms.
Achutegui had been flirting with him. He
confessed to hitting her with his car, but claimed his memory of the events was
spotty because he had been extremely intoxicated at the time. The confession contained contradictory
statements about how the incident occurred, none of which matched up with the
physical evidence found at the scene.
Sanchez said he kept driving after hitting the victim, and suggested a
second vehicle travelling behind him must have run over Ms. Achutegui in the
field.
Sanchez further admitted to fleeing
south after the killing, abandoning his car on the streets of Los Angeles, and
buying a bus ticket to Mexico. The make
and model of the automobile was never confirmed. Witness statements obtained in 1985 variously
described the vehicle as a mid-1970s Ford LTD four-door sedan or a Mercury
Cougar, with brown or maroon paint. Sanchez
told investigators he had owned a brown 1969 Dodge Coronet and later drove a
1979 Pontiac Trans Am.
Trial and
Sentencing
The Fresno County District Attorney
charged Sanchez with a single count of murder (Pen. Code, § 187, subd. (a)). The matter was tried before a jury in January
and February 2012.
The prosecution theorized that Ms.
Achutegui survived an initial roadway collision with Sanchez’s car and then ran
towards the location where her body was found.
In other words, Sanchez allegedly drove into the field in pursuit of the
victim, struck her from behind while she was running, and purposely crushed her
body under the weight of his vehicle. Crime
scene photos and the results of a subsequent autopsy were consistent with this
theory. The medical examiner’s trial
testimony described the cause of death as a “crush injury to the chest,â€
resulting in severely lacerated and collapsed lungs, 10 broken ribs, and
several other internal injuries.
Sanchez’s own accident
reconstruction expert agreed that the tire tracks left at the scene were
indicative of an intentional effort to navigate the automobile off the road and
into the field. Defense counsel
questioned the motive for such behavior, particularly because there were no
signs of robbery or sexual assault. There
was, however, DNA evidence which showed Sanchez had sex with the victim within
approximately 24 hours of her death.
The prosecution’s case-in-chief
included testimony from a number of Sanchez’s friends and acquaintances, most
of whom were reluctant to answer questions about his behavior on the night of
Ms. Achutegui’s death. Among these
witnesses were Salvador Martinez and Jose Orozco, the two men who told
Detective Chavez that they had heard Sanchez admit to killing two women. Mr. Orozco confirmed this information at
trial and also testified to seeing a dent in the front of Sanchez’s car, “as if
it had hit something.†Salvador
Martinez, however, changed his original story by claiming Sanchez told him he
had killed a wild animal. Mr. Martinez
also acknowledged receiving an anonymous phone call prior to trial from someone
who threatened him with retribution if he testified against the defendant. Transcripts of recorded jailhouse phone calls
between appellant and his brother suggested that Sanchez’s family members
attempted to influence the testimony of Mr. Martinez and several other
witnesses.
Sanchez’s defense strategy focused
on reinterpreting the physical evidence to support a theory of third party
culpability. Most of these efforts
relied on Deputy Preheim’s track width measurements at the crime scene, which
measured 62.5 inches.
name="_ftnref1" title="">[1] A
defense expert compared this measurement against a vehicle database containing
the track widths for cars manufactured during the 1960s and 1970s to determine
if any of the automobiles linked to Sanchez could have made the same
tracks. The expert found that the 1969
Dodge Coronet had a track width of only 60 inches. The 1979 Pontiac Trans Am had a track width of
61 inches. Most models of the Ford LTD
and Mercury Cougar had track widths ranging from 64-67 inches depending on the
year and body style, though a few versions of the Cougar measured 63 inches. The expert’s findings were rounded to the
nearest inch based on the original wheel and tire sizes of each vehicle. The latter assumption was critical, since it
was conceded that the use of after-market parts and other customizations could
change the track width of any given car.
The jury found Sanchez guilty of
first degree murder. He was sentenced to
a term of 25 years to life in prison, with credit for 1,254 days of presentence
custody. Presentence conduct credits
were denied pursuant to Penal Code section 2933.2.
DISCUSSION
Exclusion
of Hearsay Evidence
Background
Sanchez moved in limine for
permission to introduce hearsay statements made by two people who were no
longer alive at the time of trial. Both
declarants spoke with sheriff’s deputies during the early stages of their
investigation into Ms. Achutegui’s death.
Proof of the witnesses’ statements and the circumstances under which
they were made was limited to the contents of two police reports. Our summary of the proffered evidence comes
from those reports.
Robert Alejo, then a farm laborer working
in the San Joaquin area, was brought to the crime scene by his employer on the
morning of November 8, 1985 to speak with detectives about the homicide. The details of what precipitated this meeting
are unknown. Mr. Alejo believed he was
familiar with the victim, though it does not appear that he ever saw the dead
body. The police report states: “I
advised Mr. Alejo of a female’s body being found at this location and described
the victim to him and Mr. Alejo [said] the description of the victim matched
that of a female he knows only by the nickname of ‘La Huerda.’ Mr. Alejo stated he has known this female for
some time and knows her to be a barmaid working at La Pandeda Bar located in
the City of San Joaquin.†(Capitalization
omitted.)
Mr. Alejo had seen “La Huerdaâ€
approximately two weeks earlier in the same area where the victim was
found. She was accompanied by two
Hispanic males and one Hispanic female.
The group congregated around a green Ford Torino coupe. The police report contains detailed
descriptions of the three companions, but no identifying information about “La
Huerda.â€
“Mr. Alejo proceeded to state [that]
he has seen the two described male subjects on prior occasions in the City of
San Joaquin and has seen [one of the men] with La Huerda on occasions. Mr. Alejo stated he has on other occasions
seen La Huerda in the subject’s green Ford Torino parked at this
location.†(Capitalization omitted.) In addition, the witness informed detectives
that he drove by the vicinity of the crime scene at 7:00 p.m. on November 7,
1985, and again at approximately 5:30 a.m. and 6:30 a.m. the next day, but saw
no one in the area at those times.
The second declarant was John
Apodaca. Speaking with a detective on
the afternoon of November 9, 1985, Mr. Apodaca “said that a subject named Valariano
(Shorty) Flores had stated that he had seen the victim and Felipe Sanchez leave
the bar together on the morning of the homicide.†(Capitalization omitted.) Mr. Apodaca further advised that he personally
witnessed a vehicle drive out of the field (i.e., the crime scene) at
approximately 2:00 p.m. or 3:00 p.m. on the afternoon of November 7, 1985. He described the car as a four-door Mercury
Cougar with reddish/brown paint. An
individual named “Daniel†(last name unknown) told Mr. Apodaca that the driver
of the car was Felipe Sanchez.
Sanchez’s motion in limine
acknowledged the statements attributed to Mr. Alejo and Mr. Apodaca were
hearsay, but argued that excluding the evidence would violate his
constitutional due process rights.
Defense counsel attempted to draw parallels between the facts of
Sanchez’s case and those in Chambers v.
Mississippi (1973) 410 U.S. 284 (Chambers),
and also made passing reference to Green
v. Georgia (1979) 442 U.S. 95. No
other cases were cited in the moving papers.
The motion was heard on December 7,
2011, at which point the trial court found the evidence did not fall within an
exception to the hearsay rule, and was thus inadmissible. The trial court also discussed at length the
requirements set forth in Evidence Code section 1350, which it referred to as
the “Unavailable Declarant Hearsay Rule.â€
Concerned the judge had lost sight of his arguments, Sanchez filed a
motion for reconsideration. The second
motion was heard on January 18, 2012, approximately five days prior to the
start of trial. The court again ruled to
exclude the evidence, this time distinguishing Chambers, supra, and
finding that the “factors indicating the trustworthiness of the out-of-court
statements†at issue in the Chambers decision
were “truly non-existent in the case at hand.â€
Incidentally, the information
contained in the police reports was later admitted into evidence for
non-hearsay purposes. Sanchez does not
acknowledge this in his briefs. All of
his arguments on appeal concern the propriety of the trial court’s ruling at
the in limine stage.
Standard of
Review
“[A]n appellate court applies the
abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence, including one that turns on the hearsay nature of
the evidence in question.†(
725, citations omitted.) This standard
is deferential to the trial court’s evaluation of the evidence from a factual
standpoint, including those findings which pertain to the trustworthiness of a
declarant’s out-of-court statements. (
820 [“A reviewing court may overturn the trial court’s finding regarding
trustworthiness only if there is an abuse of discretion.â€]; see
132 (DeHoyos) [“[A] trial court has
broad discretion to determine whether a party has established the foundational
requirements for a hearsay exception….â€].)
Analysis
Sanchez claims the hearsay contained
in the 1985 police reports was admissible by virtue of the “indicia of
reliability†found in the statements themselves and the circumstances under
which they were made. He further
contends that “[b]ecause the missing testimony was sufficient to raise a
reasonable doubt as to [appellant’s] guilt, and because the statements were
admissible under general reliability principles, this Court should find that
the improper exclusion of the evidence was prejudicial, requiring reversal of
the judgment.†We find no merit in these
arguments.
“‘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.†(Evid. Code § 1200, subd. (a).) Unless subject to an exception, hearsay is
inadmissible. (Id., subd. (b).) “‘The chief
reasons for this general rule of inadmissibility are that the statements are
not made under oath, the adverse party has no opportunity to cross-examine the
declarant, and the jury cannot observe the declarant’s demeanor while making
the statements.’†(People v. Duarte (2000) 24 Cal.4th 603, 610, quoting
4th 956, 960-961.)
Sanchez’s arguments concerning
“general reliability principles†and a supposed “indicia of reliabilityâ€
exception to the hearsay rule seem to allude to Rule 807 of the Federal Rules
of Evidence. This rule allows the
introduction of otherwise inadmissible hearsay when it is shown that the
evidence possesses “circumstantial guarantees of trustworthiness†(among other
prerequisites). (Fed. Rules Evid., rule
807, subd. (a).) However, “California,
unlike federal courts and some state jurisdictions, does not have a ‘residual
hearsay’ exception that permits any hearsay statement into evidence as long as
it bears sufficient indicia of reliability.â€
(In re Cindy L. (1997) 17
Cal.4th 15, 27-28; accord, People v.
Gonzales (2012) 54 Cal.4th 1234, 1289 & fn. 24.)
Because the hearsay did not fall
within a statutory exception, Sanchez must show the trial court’s ruling
contravened binding judicial precedent in order to establish an error under
state law. (People v. Ayala (2000) 23 Cal.4th 225, 268 (Ayala) [“‘exceptions to the hearsay rule are not limited to those
enumerated in the Evidence Code; they may also be found in . . . decisional
law.’â€].) No such showing has been
made. Instead, appellant cites to a
number of plainly inapposite cases which deal with the right of confrontation
under the Sixth Amendment to the federal Constitution and the admissibility of
hearsay without opportunity for cross-examination in the era predating
36 (Crawford).
In particular, Sanchez claims
even though hearsay is usually inadmissible if it does not fall under some
exception to the hearsay rule, the statement of an unavailable witness can be
admitted if it bears adequate indicia of reliability.†This contention is far off the mark. The Wright
opinion held that failure to exclude certain hearsay statements made by a
two-and-one-half-year-old girl to a pediatrician, which were admitted at trial
pursuant to a residual hearsay exception in Idaho’s evidence code, violated the
defendant’s constitutional right to confront the witness.
The Wright decision relied on the holding in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) [overruled by Crawford,
supra, 541 U.S. at pp. 60-69], which
provided general guidelines for determining “when incriminating statements
admissible under an exception to the hearsay rule also meet the requirements of
the Confrontation Clause.†(
Under the Roberts approach,
the prosecution must either produce the witness or demonstrate the
unavailability of the witness. “[O]nce a
witness is shown to be unavailable, ‘his statement is admissible only if it
bears adequate “indicia of reliability.â€
Reliability can be inferred without more in a case where the evidence
falls within a firmly rooted hearsay exception.
In other cases, the evidence must be excluded, at least absent a showing
of particularized guarantees of trustworthiness.’†(Id.
at pp. 814-815.)
The issue in Wright was whether the statements of an unavailable child witness
“bore sufficient indicia of reliability to withstand scrutiny under the
[Confrontation] Clause.†(
Since the statements were not admitted under a firmly rooted hearsay exception,
but rather under Idaho’s residual hearsay exception, the court considered
whether there were “‘particularized guarantees of trustworthiness’†to be found
in the circumstances under which the statements were made. (Id.
at p. 819.) The analysis which followed
is what Sanchez refers to as the residual trustworthiness test: “[The rationale
behind firmly rooted hearsay exceptions is that] if the declarant’s
truthfulness is so clear from the surrounding circumstances that the test of
cross-examination would be of marginal utility, then the hearsay rule does not
bar admission of the statement at trial.â€
(Id. at p. 820.) To be admissible under the constitutional
standard, the evidence “must similarly be so trustworthy that adversarial
testing would add little to its reliability.â€
(Id. at p. 821.) “[U]nless an affirmative reason, arising from
the circumstances in which the statement was made, provides a basis for
rebutting the presumption that a hearsay statement is not worthy of reliance at
trial, the Confrontation Clause requires exclusion of the out-of-court
statement.†(Ibid.)
The California cases cited by
Sanchez discuss the “trustworthiness†of certain types of hearsay under
circumstances where the evidence at issue satisfied a well-established
exception to the hearsay rule under state law, but was objected to on the basis
of the defendant’s federal constitutional right of confrontation. (E.g., People
v. Cervantes (2004) 118 Cal.App.4th 162, 170-177 [statement against penal
interest (§ 1230)]; People v. Duke
(1999) 74 Cal.App.4th 23, 28-29 [same]; People
v. Greenberger (1997) 58 Cal.App.4th 298, 326-329, 334-335 [same].) As noted above, California does not have a
catchall exception to the hearsay rule based on “indicia of reliability.†(Gonzales,
supra, 54 Cal.4th at p. 1289 & fn.
24; In re Cindy L.,
statements Mr. Alejo and Mr. Apodaca as hearsay not subject to an exception was
entirely consistent with state law, and thus did not constitute an abuse of
discretion.
Having found no state law error, we reject
Sanchez’s federal constitutional claim regarding his right to present a
defense. “Defendant’s argument fails to
account for the general rule that the application of the ordinary rules of
evidence under state law does not violate a criminal defendant’s federal
constitutional right to present a defense, because trial courts retain the
intrinsic power under state law to exercise discretion to control the admission
of evidence at trial.†(
503.) Exceptions to this rule are rare,
and have been found only in “extraordinary and unusual circumstances.†(Ibid.) One of the best known examples of an
exception to the general rule is Chambers,
supra, which Sanchez relied upon
below and cites again on appeal.
The defendant in
police officer in 1969. Shortly after
the crime occurred, a third party confessed to several friends that he had
killed the officer. He later made a
sworn confession to the crime. At trial,
the defendant called the alleged perpetrator as a witness in an attempt to
elicit the same information. The
individual repudiated his confession on the stand, and the defendant was denied
permission to examine him as an adverse witness based on Mississippi’s “‘voucher’
rule,†which barred parties from impeaching their own witnesses. (Chambers,
recognize an exception to the hearsay rule for statements made against penal
interests, thus preventing the defendant from introducing evidence that the
witness made self-incriminating statements to three other people. (Id.
at pp. 297-299.)
Observing that Mr. Chambers’ defense
was “far less persuasive†than it might have been had he been allowed to admit
testimony from other sources about the confession, the United States Supreme
Court ruled that the hearsay statements came with “considerable assurance of
their reliability†because (1) the confession was made spontaneously to a close
acquaintance shortly after the crime occurred, (2) it was corroborated through
other evidence, (3) the declarant’s statements were diametrically opposed to
his penal interests, and (4) the declarant was available in court for
cross-examination. (Chambers, supra, 410 U.S.
at pp. 300-301.) Given these
circumstances, the Supreme Court concluded that the defendant had been deprived
of his constitutional right to a fair trial.
(Id. at p. 302.)
In Ayala, supra, the
California Supreme Court considered whether a criminal defendant “had either a
constitutional or a state law right to present exculpatory but unreliable
hearsay evidence that is not admissible under any statutory exception to the
hearsay rule.†(Ayala, supra, 23 Cal.4th
at p. 266.) Relying on
trial court had “infringed on various constitutional guaranties when it barred
the jury from hearing potentially exculpatory evidence.†(Id.
at p. 269.) Our high court rejected this
argument, holding that “‘Few rights are more fundamental than that of an
accused to present witnesses in his own defense. [But in] the exercise of this right, the
accused, as is required of the State, must comply with established rules of procedure
and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.’
Thus, ‘[a] defendant does not have a constitutional right to the
admission of unreliable hearsay statements.’
Moreover, both we and the United States Supreme Court have explained
that Chambers is closely tied to the
facts and the Mississippi evidence law that it considered. Chambers
is not authority for the result defendant urges here.†(Ibid,
citations omitted.)
Although Ayala involved statements made to a defendant’s own private
investigator, the Chambers decision
has specifically been held not to apply to a purported eyewitness’s hearsay
statements to police. (
72, 82-83.) “Not only was the declarant
unavailable to explain those statements, but there was no indication that the
statements were reliable, as they lacked the conventional indicia of
reliability: they were not made under oath or other circumstances that impress
the declarant with the solemnity of the statements; the declarant’s word is not
subject to cross-examination; and she is not available in order that her
demeanor and credibility may be assessed by the jury.†(Id.
at p. 83.)
Considered against the backdrop of
these authorities, we find no abuse of discretion by the trial court in its
measuring of the trustworthiness of the hearsay attributed to Mr. Alejo and Mr.
Apodaca. With regard to the latter
witness, there were multiple levels of hearsay linked to unknown
individuals. Mr. Apodaca’s personal
knowledge was limited to his observation that a Mercury Cougar was present in
the vicinity of the crime scene several hours prior to the victim’s death.
Mr. Alejo’s statements raise
questions about whether the woman to whom he referred in his conversations with
police was actually Ms. Achutegui.
Whereas several witnesses had said the victim was known as “Cuchi Cuchiâ€
and worked at La Pantera Azul, Mr. Alejo spoke of a person who went by the nickname
“La Huerda†and worked at “La Pandeda Bar.â€
These important discrepancies would have certainly been addressed on
cross-examination had the witness been available to testify. The prosecution also had no way of exploring
the possibility that Mr. Alejo’s statements were the product of coercion by
Sanchez’s friends and relatives, or that he had some other motivation to
provide misleading information to the police.
(See Ayala,
cross-examination or further investigation the prosecutors might have
discovered evidence, for example, that defendant had coerced [the deceased
witnesses] into making [their statements], just as they had introduced evidence
that he induced [another witness] to perjure himself….â€].) Contrary to Sanchez’s arguments, the
truthfulness of the hearsay was not so obvious from the surrounding
circumstances that the test of cross-examination would have been of marginal
utility.
Furthermore, Sanchez was ultimately
successful in getting the substantive information from the police reports admitted
at trial for nonhearsay purposes.
Through examination of Detective Chavez, the defense established that
the police were told Ms. Achutegui had been seen at the location where her body
was found on prior occasions, in or near a green Ford Torino that did not match
the description of Mr. Sanchez’s vehicle, with a person described as a Mexican
male, approximately 5’5 in height and 145 pounds with dark hair and a
moustache. The defense relied on this
information to support its theory of third party culpability, including those
arguments relating to the track width measurements taken at the crime
scene. Sanchez fails to show how the
trial court’s hearsay ruling at the in limine stage resulted in a violation of
his constitutional right to present a defense at trial.
Sixth
Amended Right to Confrontation
Background
The defense called Detective Chavez
to the witness stand during its case-in-chief in an effort to criticize the
original police investigation and suggest that detectives did not follow up on
leads pointing to suspects other than Sanchez.
It was through this examination of Detective Chavez that Sanchez’s
attorney elicited testimony concerning the information relayed to police by
Robert Alejo and John Apodaca. On
cross-examination, the prosecution asked the witness, “[I]sn’t it true that
part of the information that led you to believe that Felipe Sanchez committed
this murder[,] and why you focused on him[,] was that he was seen – you had
information he was seen leaving the bar with the victim that night?†Prior to the witness’s answer, defense
counsel said, “Objection, calls for hearsay.â€
The trial court overruled the objection, and Detective Chavez responded
affirmatively.
Sanchez claims the trial court’s
failure to sustain the hearsay objection violated his right to confront
accusing witnesses as guaranteed by the Sixth Amendment to the federal
Constitution, and was inconsistent with the holdings of the United States
Supreme Court in Crawford,
Standard of Review
“In reviewing the trial court’s
order overruling the hearsay objection, we apply the deferential abuse of
discretion standard of review.†(
1063, 1067.) Legal questions concerning
the constitutionality of admitting the challenged evidence are reviewed de
novo. (See People v. Seijas (2005) 36 Cal.4th 291, 304 [independent
standard of review should be applied to rulings which affect the constitutional
right of confrontation].)
Analysis
As a preliminary matter, we are
inclined to agree with respondent that Sanchez forfeited his claim by failing
to object on constitutional grounds. (
730; People v. Raley (1992) 2 Cal.4th
870, 892 [hearsay objection insufficient to preserve a claim under the confrontation
clause].) Although his attorney
successfully moved in limine to “federalize†all objections made during trial,
the California Supreme Court has indicated that the particular grounds for an
objection must still be specified. (See
938 [regarding failure to preserve a claim of prosecutorial misconduct: “Even
to the extent that defendant’s pretrial motion to ‘federalize’ all defense
objections was granted, the effect of granting the motion was, as the trial court
stated, that the trial objections would be ‘deemed to be made under both
California and Federal law.’ This did
not excuse defendant from the obligation of stating the specific ground for an objection in order to preserve the issue for
appeal.â€)].) Assuming arguendo that the
issue was preserved in this instance, we find Sanchez’s claim to be unfounded.
The Sixth Amendment to the United
States Constitution provides that the accused in a criminal prosecution “shall
enjoy the right . . . to be confronted with the witnesses against him[.]†(U.S. Const. amend. VI.) This right of confrontation applies to
certain types of extrajudicial statements.
Where the statements at issue are testimonial hearsay, the confrontation
clause prohibits their admission unless: (1) the declarant is unavailable; and
(2) the defendant has been provided a previous opportunity to cross-examine the
declarant. (Crawford, supra, 541 U.S.
at pp. 53-54.)
“Crawford
did not replace a conventional hearsay analysis. Instead, it added a second layer of inquiry
when hearsay is offered against a criminal defendant.†(People
v. Blacksher (2011) 52 Cal.4th 769, 811.)
The Crawford opinion also
recognizes that statements offered “for purposes other than establishing the
truth of the matter asserted†fall outside the scope of the confrontation
clause. (Crawford, supra, 541 U.S.
at p. 59, fn. 9.) Accordingly, the
threshold issue is whether the challenged statements were, in fact,
hearsay.
Out-of-court statements are
admissible if offered for a nonhearsay purpose, i.e., for something other than
the truth of the matter asserted, so long as the nonhearsay purpose is relevant
to an issue in dispute. (
863 (Montes).) Pertinent here is the rule that “an
out-of-court statement can be admitted for the nonhearsay purpose of showing
that it imparted certain information to the hearer, and that the hearer,
believing such information to be true, acted in conformity with such belief.†(Ibid.) A statement that is offered to prove the
effect on the hearer is nonhearsay because “‘it is the hearer’s reaction to the
statement that is the relevant fact sought to be proved, not the truth of the
matter asserted in the statement.’†(
901, 907.)
Sanchez’s trial counsel invited the
now challenged cross-examination of Detective Chavez by questioning the witness
about why police focused their investigation on Sanchez instead of pursuing
leads about other suspects. The
follow-up question by the prosecution, and witness’s response, were properly
admitted for a nonhearsay purpose (effect on the listener) that was relevant to
an issue in dispute, namely the reasoning behind the witness’s investigatory
efforts and decisions. (
Given the logical and legally permissible basis for admitting the evidence
in a nonhearsay context, we reject appellant’s assertions of error.
C.
Cumulative
Error
Sanchez argues the cumulative effect
of the errors alleged on appeal requires reversal of his conviction. The foregoing discussions dispose of this
claim, as there are no errors to cumulate.
(People v. Fernandez (2013)
216 Cal.App.4th 540, 567.)
D.
The trial court awarded Sanchez
1,254 days of actual custody credit at the time of sentencing, but denied him
presentence conduct credits. The court
relied on Penal Code section 2933.2, subdivision (c), which makes presentence conduct
credits unavailable to persons convicted of murder.
the reasons hereafter stated, we agree with the parties that Sanchez’s sentence
was not subject to the restrictions of section 2933.2, and recalculate his
presentence credits according to the applicable statutory authorities. (See People
v. Smith (2001) 24 Cal.4th 849, 852-854 [unauthorized sentence may be
corrected in the first instance on appeal].)
Under California law, a criminal
defendant is entitled to credit against their sentence for all days spent in
custody while awaiting trial and/or sentencing.
(§ 2900.5, subd. (a); People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 48 (Rajanayagam).) Custody
credit is calculated from the date of arrest through the time of sentencing.
Section 4019
provides for additional presentence credits based on work time and good
behavior, collectively referred to as “conduct credit,†and specifies the rate
at which such credit can be earned. (§
4019, subds. (a), (b) & (c); People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Section
2933.2 prohibits any person convicted of murder from accruing presentence
conduct credit. (§ 2933.2, subd.
(a).) However, the statute does not
apply to offenses committed prior to its effective date of June 3, 1998. (People
v. Chism (2014) 58 Cal.4th 1266, 1336.)
Sanchez is therefore entitled to receive presentence conduct credits in
accordance with the laws in effect at the time of his offense.
suggest that Sanchez did not comply with the behavioral requirements of section
4019, we must calculate his presentence conduct credits pursuant to the terms
of the statute as it existed in November 1985.
(In re Marquez (2003) 30
Cal.4th 14, 25 (Marquez).)
At
the time of the subject offense, conduct credits under section 4019 could be
accrued at the rate of two days for every four days of actual time served in
presentence custody. (Stats. 1982, ch.
1234, § 7, pp. 4553–4554 [§ 4019, former subd. (f)]; Stats. 2010, ch. 426, § 2;
see Marquez, supra, 30 Cal.4th at pp. 25-26; People
v. Ramirez (2014) 224 Cal.App.4th 1078, 1083.) Based on the method of calculation adopted by
the California Supreme Court under the former law, Sanchez’s presentence conduct
credits are determined by first dividing the amount of actual custody time
(1,254 days) by four and discarding any remainder, which leaves 313 days. (Marquez,
supra, 30 Cal.4th at pp. 25-26.) This number is then multiplied by two,
resulting in 626 days of conduct credit (1254 ÷ 4 = 313 [discarding
remainder] x 2 = 626). (
Sanchez
contends he is entitled to 627 days of conduct credit, which we presume is the
result of his failure to discard the remainder prior to the second step of the
calculation. Respondent identifies the
correct method of calculation, yet repeatedly states that Sanchez should only
be awarded 616 days of conduct credit.
As we have explained, the correct amount of time is 626 days. We modify the judgment accordingly.
Appellant’s sentence is modified to
reflect an additional 626 days of presentence conduct
credit. As so modified, the judgment is
affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Detjen, J.
name="_ftn1" title=""> [1] Deputy Preheim measured the
horizontal distance between the rear tires of the vehicle based on his
determination of which tracks were made by the back tires as opposed to the
front tires. It was his custom and
practice to measure between the center lines of each tire if those points could
be determined from the tracks. As
explained by the defense expert, accident reconstructionist Robert Liebbe, the
proper term for such a measurement is “track width.â€
name="_ftn2" title=""> [2] Evidence Code section 1350
establishes a hearsay exception in serious felony cases for out-of-court
statements made by an unavailable witness when “there is clear and convincing
evidence that the declarant’s unavailability was knowingly caused by, aided by,
or solicited by the party against whom the statement is offered for the purpose
of preventing the arrest or prosecution of the party and is the result of the
death by homicide or the kidnapping of the declarant.†The exception is designed to aid the
prosecution, if warranted under the circumstances of the case, and would not
ordinarily be invoked by a defendant. (See Evid. Code, § 1350, subd. (b).)
