Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 94CF1744, Patrick Donahue, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffery J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Ernesto Ernie Martinez challenges his first degree murder conviction, contending the trial court prejudicially erred in admitting two witnesses’ prior statements to investigators. Defendant argues the prior statements constituted inadmissible hearsay because the prosecution failed to demonstrate the prior statements were inconsistent with the witnesses’ trial testimony. Defendant contends the court’s ruling violated his right to confrontation because the witnesses’ inability to recall their prior statements made it impossible to conduct an effective cross-examination.
We find the prosecution presented an adequate foundation for admitting the prior statements of one witness, and that defendant failed to object to the admission of the other witness’s prior statements, thus waiving the issue on appeal. Finally, we conclude the witnesses’ contrived failure to recall their prior statements did not violate defendant’s confrontation and due process rights because the witnesses were present and fully available for cross-examination. We therefore affirm.
I
Factual And Procedural Background
On December 7, 1993, at approximately 2:35 p.m., Eduardo Gonzalez received a fatal gunshot wound as he drove through a Santa Ana strip mall near the intersection of McFadden and Sullivan. A nine-millimeter bullet entered Gonzalez’s vehicle and lodged itself in the right side of his chest.
Gonzalez, who went by the gang moniker “Chapas, ” was a leader or “shot caller” for the Lilhood gang in Santa Ana. Defendant, whose gang moniker is “Spooky, ” belonged to the West Myrtle gang. Although the Lilhood and West Myrtle gangs had been allies, they were at war by the end of 1992. Sometime in 1992, Gonzalez pulled up alongside defendant’s car and pointed a gun at defendant. Defendant quickly drove off, but the incident angered him. He felt Gonzalez’s actions were disrespectful because his pregnant girlfriend, Sonia Adame, sat beside him when the incident occurred. Defendant told Adame he would not let go of the incident easily, and it was “‘either me or him.’”
Defendant also told David Sanchez, a lifelong friend and fellow West Myrtle gang member, about a previous incident where Gonzalez fired a gun at him. Defendant told Sanchez he planned to obtain a weapon to defend himself should Gonzalez shoot at him again. Three weeks before Gonzalez’s murder, Adame saw Martinez with a gun for the first time.
On the day of Gonzalez’s murder, Adame was at home with defendant when he received a telephone call. During the call, defendant appeared hurried and anxious, and he left the house without telling Adame who was on the phone or where he was going. Adame did not see him for the remainder of the day and spent the night at Sanchez’s house.
After learning of the shooting, Sanchez went to defendant’s home to inform him of Gonzalez’s death. Defendant appeared surprised at the news. He admitted shooting at Gonzalez when he spotted him driving through Santa Ana, but thought he had missed his target. Defendant gave Sanchez the gun he had used, a black nine-millimeter Walther, and asked Sanchez to dispose of it. Sanchez gave the gun to another West Myrtle gang member, who traded it for heroin.
In 1993, Santa Ana Police Officer Terry Zlateff interviewed sisters Angie and Ruby Villanueva separately at their mother’s house. At the time of the interviews, Ruby was the girlfriend of Rudy Carrillo, a West Myrtle gang member. Ruby had previously dated Gonzalez.
Before trial, Ruby Villanueva married Rudy Carrillo, and testified under her new name, Ruby Carrillo. We refer to Angie and Ruby by their first names for clarity and intend no disrespect.
Ruby told Zlateff that on the day of Gonzalez’s murder, she was tending to Carrillo, who had been shot earlier in the day. West Myrtle gang members Tovys, La Cra, Puppet, Shorty, and defendant also joined them. While Ruby was in the bathroom, she overheard Tovys berate La Cra for failing to do something about Gonzalez the previous week, and gave La Cra until the end of the weekend to take action. Tovys struck La Cra, and waved a black nine-millimeter semiautomatic handgun. At about 2:00 p.m., Shorty and La Cra got into Shorty’s car and left. About 20 minutes later, Tovys, Puppet, and defendant left in defendant’s car. Shortly thereafter, Ruby received a call from Angie, who informed her Gonzalez had been shot. Ruby then called Gonzalez’s mother, Graciela, who confirmed Gonzalez had been fatally shot and asked Ruby to come to her house. When Ruby arrived, Graciela asked her if she knew who murdered her son. Ruby told her she did not know, but promised to find out. Ruby then visited Carrillo’s house, where La Cra, Shorty, and defendant also were present. Ruby told the assembled group they had “‘better start sweating it’” because she had visited the victim’s mother and learned the police knew who shot Gonzalez and had a description of the shooter’s car. Defendant, the only member of the group to react to Ruby’s statements, immediately panicked and started cursing.
Angie told Zlateff defendant gave Sanchez a black semiautomatic nine-millimeter handgun the day after the murder. Angie was upset about the weapon and asked Sanchez to get rid of it because he was on parole. Two or three days after the shooting, Angie spoke with defendant, who described how he, while driving, spotted Gonzalez in another car and shot at him.
The jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)); and found defendant personally used a firearm (§ 12022.5). The court sentenced defendant to 25 years to life on the murder conviction and an additional three-year consecutive term for using a firearm.
All statutory references are to the Penal Code unless otherwise indicated.
II
Discussion
A. The Trial Court Did Not Err in Admitting Ruby’s Prior Statements
A witness’s prior inconsistent statement is admissible not only to impeach his or her credibility, but also to prove the truth of the matters asserted. (People v. Green (1971) 3 Cal.3d 981, 985 (Green); see Evid. Code, § 1235.) “In normal circumstances, the testimony of a witness that he does not remember an event is not ‘inconsistent’ with a prior statement by him describing that event. [Citation.] But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.” (Green, at p. 988.) Thus, the trial court may treat a witness’s deliberately evasive testimony that he or she cannot recall an event as inconsistent in effect with a prior statement describing that event. (Id. at pp. 988-989.)
Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”
At trial, Zlateff testified about the statements Ruby and Angie made to him, and the prosecutor played a tape recording of the remarks. Defendant contends the court erred in admitting this evidence because the statements constituted hearsay and the prosecution failed to establish the statements were inconsistent under Green. Specifically, defendant contends the prosecution never asked the witnesses whether they independently recalled the events, but only if they recalled giving statements to the police regarding the crime. Defendant’s contention as to Ruby is not borne out by the record.
During her trial testimony, Ruby recalled caring for Carrillo at his home after he had been shot, but she professed not to remember anything relating to Gonzalez’s killing. For example, Ruby testified that the Lilhood and West Myrtle gangs came from the same neighborhood, but could not remember if any problems arose between them. Ruby testified she remembered learning that Gonzalez had been killed, but could not remember whether she had been told he had been shot or had just died. Ruby could not remember if any West Myrtle gang members had come over to Carrillo’s house the day Gonzalez was killed. Ruby also could not remember being in the bathroom at Carrillo’s house and overhearing a conversation among the gang members. When asked about Gonzalez’s mother, Graciela, Ruby testified “I think I did meet her once.” She could not remember if she met Graciela the day Gonzalez died, nor did she recall asking Graciela about what had happened to Gonzalez. Finally, Ruby did not recall talking to Zlateff about Gonzalez’s death.
Each of the key events recounted in Ruby’s prior statements to Zlateff were covered at trial, to which she claimed to have no recollection. The trial court found, and defendant’s counsel conceded, that Ruby feigned lack of knowledge on these matters. We therefore conclude the trial court did not err in admitting evidence of Ruby’s prior statements.
B. Defendant Waived His Appellate Argument Challenging the Admission of Angie’s Prior Statements When He Failed to Object at Trial
The Attorney General contends defendant waived any argument as to the admission of Angie’s prior statements because defendant failed to object to this evidence. We agree.
True, as defendant notes, he raised the admissibility of Angie’s prior statements with the court before Angie testified. Defendant’s counsel expressed concern about the witness’s personal knowledge of certain prior statements, and alerted the court that the prosecution might have difficulty establishing a proper foundation to admit the statements.
Nonetheless, defendant apparently did not object to the admission of Angie’s prior statements on the grounds of hearsay or lack of foundation either during or after Angie’s testimony. Because defendant did not lodge a timely objection to the admission of this evidence on the grounds now asserted, he has waived the issue. (See People v. Barnett (1998) 17 Cal.4th 1044, 1121.); Evid. Code, § 353.)
Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
C. Admission of Ruby and Angie’s Prior Statements Did Not Violate Defendant’s Confrontation or Due Process Rights
Defendant contends admission of Ruby and Angie’s prior inconsistent statements violated his constitutional right to confrontation under the Sixth Amendment and due process under the Fourteenth Amendment. We disagree.
“The receipt in evidence of a prior inconsistent statement does not violate the confrontation clauses of the federal and state Constitutions where the declarant testifies at trial and is subject to cross-examination.” (People v. Zapien (1993) 4 Cal.4th 929, 955 (Zapien).) In such instances, “‘[d]efendant retains the opportunity to question the declarant as to the circumstances surrounding the prior statements and to elicit from the declarant an explanation for the inconsistencies in his prior statement and his on-the-stand testimony.’ [Citation.]” (Ibid.) Because the two witnesses were present at trial and subject to cross-examination, defendant’s confrontation clause argument fails.
Defendant argues admission of the prior statements violated his due process rights because the witnesses’ failure to recollect the facts underlying their prior statements made it impossible to conduct an effective cross-examination. A similar argument was rejected in Zapien, where the Supreme Court recognized that a witness’s denial of the prior statement “‘is more favorable to the cross-examiner than could be produced by eliciting an admission that the statement was made and an explanation of change of position . . . .’” (Zapien, supra, 4 Cal.4th at p. 954.) Indeed, on cross-examination in the present case, defense counsel elicited an admission from Angie that, although she could not recall what she had previously told investigators, any prior statements she had made implicating defendant were false, and motivated by her animosity toward him. We conclude admission of the two witnesses’ prior statements did not deprive defendant of his due process rights.
III
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.