Opinion
D048358
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMES DANIEL LOWTHER, Defendant and Appellant.
NOT TO BE PUBLISHED
James Lowther appeals from a judgment convicting him of residential burglary and unlawfully receiving stolen property. He challenges the residential burglary conviction, contending (1) the trial court erred by precluding him from presenting evidence of a codefendants prior statement that Lowther did not assist with the burglary, and (2) the evidence was insufficient to establish his culpability for burglary. We reject Lowthers arguments and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
At about 10:30 a.m. on October 3, 2005, Thomas Greany, a maintenance worker at the University of California, San Diego (UCSD) responded to a maintenance call concerning a dormitory building. While waiting for the elevator on the first floor common area of the dormitory, Greany observed two males and a female exit the elevator. The three individuals were later identified as Lowther, Timothy Rauth, and Nicole Richardson. Greany testified that something seemed unusual about the group; they did not appear to be students; and they appeared to be lost. Greany took the elevator to the third floor and looked over a balcony to watch the group on the first floor. He saw Rauth peering through the window of a door leading to individual dormitory rooms, while Richardson and Lowther stood behind him and looked over their shoulders as if they were checking if anyone was around. This confirmed Greanys thoughts that there was something suspicious about the group.
Greany returned to the first floor and alerted coworker Leo De La Torre about his suspicions. De La Torre had seen the group open the door and enter the dormitory room area. A few minutes later, the workers saw the group exit the building. Rauth was holding a box-like object that he was trying to conceal under his shirt. The three were walking very fast towards the parking structure, with Rauth in the lead, followed by Richardson and then Lowther. Greany and De La Torre followed them to the parking structure and saw them in a white Lexus vehicle. Rauth was in the drivers seat, Richardson was in the front passenger seat, and Lowther was in the back seat. The car left the parking structure at a high rate of speed. The workers had been able to partially record the cars license plate number, and they notified the UCSD police department. The police arrived at the building and were informed by students that a digital camera, a Playstation, and a box of Playstation games had been stolen.
Meanwhile, a police officer spotted the white Lexus on the freeway and pulled the vehicle over. Rauth appeared nervous and fidgety. An officer asked Rauth, "Where is the box?" Rauth motioned to Lowther, and Lowther handed Rauth the stolen box of games which had been concealed under a pile of clothes in the back seat. The officer then asked Rauth, "Where is the player?" Lowther handed Rauth the stolen Playstation which had also been under the clothes. The police found the stolen digital camera in the side compartment of the front passenger door. The police returned the group to the campus, where Greany and De La Torre identified them as the suspects.
The jury found Lowther guilty of residential burglary (Pen. Code, §§ 459, 460) and receiving stolen property (§ 496, subd. (a)). The court granted Lowther three years probation, with the condition that he serve one year in jail.
Subsequent statutory references are to the Penal Code unless otherwise specified.
DISCUSSION
I. Exculpatory Evidence
Lowther argues the trial court erred when it precluded him from presenting evidence that at codefendant Rauths change of plea proceeding, Rauth stated Lowther did not assist with the burglary.
A. Background
Prior to Lowthers trial, Rauth pleaded guilty. The change of plea form, signed by Rauth under penalty of perjury, stated that Rauth entered a residence to commit theft and that the offense was committed in concert with Lowther who aided and abetted him. However, during the oral taking of the plea Rauth changed his statement regarding Lowther. At the change of plea hearing, the trial court read the factual basis for the plea set forth in the change of plea form and asked Rauth if those facts were true. Rauth, who was under oath, responded that Lowther "did not aid. He was there. He did not go into the dorm or steal anything there. Besides that all is true . . . ." The prosecutor did not say anything about the inconsistency between Rauths two statements during the plea proceedings.
Rauths actual change of plea form and the transcript of his plea proceeding are not included in the appellate record. Our summary of Rauths statements are derived from Lowthers offer of proof and the discussions before the trial court.
Lowther subpoenaed Rauth to testify at Lowthers trial, but Rauth invoked his Fifth Amendment privilege against self-incrimination. Lowther sought admission of Rauths statement exculpating Lowther under the former testimony exception to the hearsay rule set forth in Evidence Code section 1291. The trial court found Rauth was unavailable as a witness because he had asserted the Fifth Amendment privilege and the time for appeal from his guilty plea had not expired. However, the trial court concluded that the statutory requirements for admission of former testimony were not met because the prosecution did not have an opportunity and motive to cross-examine Rauth at the plea proceeding similar to the motive it would have had at trial. Lowther argued that the prosecution had a motive to inquire about Rauths oral statement at the plea proceeding because the statement did not comport with the factual basis set forth in the written plea agreement. The court rejected this argument, noting that the statement regarding Lowther was not necessary to establish a factual basis for Rauths plea, and there was nothing in the plea agreement that suggested Rauth was required to testify or cooperate in the case against Lowther as part of the agreement.
When Lowther did not prevail on his request for admission under Evidence Code section 1291, he asserted the evidence should be admitted to protect his due process rights under the federal Constitution. The trial court rejected this argument without discussion.
B. Analysis
Lowther asserts the trial court erroneously rejected his trial counsels contentions that the statement was admissible under the former testimony exception to the hearsay rule (Evid. Code, § 1291), and that admission was required under constitutional due process principles. Additionally, he asserts his trial counsel provided ineffective representation by failing to seek admission of the statement under the declaration against penal interest exception to the hearsay rule (Evid. Code, § 1230). We first evaluate his contentions premised on the statutory hearsay exceptions, and then evaluate his due process assertion.
1. Statutory Hearsay Exceptions
Hearsay statements " are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarants word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury. " (People v. Garcia (2005) 134 Cal.App.4th 521, 537.) Both the prosecution and the defense are subject to the hearsay rules. "As a general proposition, criminal defendants are not entitled to any deference in the application of [the hearsay] constraints but, like the prosecution, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. " (People v. Hawthorne (1992) 4 Cal.4th 43, 57.)
Exceptions to the hearsay rule have been fashioned when "there are inherent traditional indicia of reliability ensuring the trustworthiness of the statement." (People v. Rios (1985) 163 Cal.App.3d 852, 863.) The trial courts are instructed not to apply the hearsay exceptions mechanistically; rather, the courts "exercise broad discretion in determining compliance with foundational requirements in light of countervailing constitutional considerations." (People v. Hawthorne, supra, 4 Cal.4th at pp. 57-58.) When the defense seeks to admit hearsay evidence, the court must balance the defendants right to present a defense against the publics interest in a reliable trial on guilt or innocence. (See People v. Ayala (2000) 23 Cal.4th 225, 269-270; People v. Garcia, supra, 134 Cal.App.4th at p. 537; Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, 1003.) We review a trial courts ruling on the admission of evidence under the abuse of discretion standard. (People v. Sanders (1995) 11 Cal.4th 475, 525.)
a. Former Testimony Exception
The former testimony exception to the hearsay rule allows admission of a declarants statements if the declarant is unavailable and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a)(2).) Former testimony includes "testimony given under oath" in another or the same action. (Evid. Code, § 1290, subd. (a).) The rationale for the former testimony exception is that the " primary objection to hearsay evidence—lack of opportunity to cross-examine the declarant—is not applicable " because the party has had an opportunity to cross-examine the declarant. (People v. Sul (1981) 122 Cal.App.3d 355, 368.)
The partys motive to cross-examine the declarant at the former proceeding must be similar to the motive at the current proceeding, but it need not be identical. (People v. Harris (2005) 37 Cal.4th 310, 333.) For example, in Harris, the Supreme Court held that the trial court properly allowed the prosecution to present an unavailable witnesss preliminary hearing testimony because the defendant had the same motive to challenge the witnesss credibility at the preliminary hearing and at trial, even though after the preliminary hearing the defense acquired additional information that might have altered the cross-examination in some particulars. (Ibid.) In contrast, in People v. Sanders, supra, 11 Cal.4th at pages 525-526, the Supreme Court held that the trial court did not abuse its discretion in precluding the defendant from presenting a witnesss testimony from a pretrial suppression hearing because the Peoples concern at the suppression hearing was to establish the officers good faith reliance on the witnesss statements and the People did not have a motive to extensively explore whether the witness had lied to the police. The Sanders court reasoned that the "issues at the suppression hearing and at trial were sufficiently distinct that the trial court could reasonably conclude that the People lacked a similar interest and motive to cross-examine" the witness. (Ibid.)
Here, Rauth was under oath when he stated that Lowther was not involved in the burglary; thus, his statement can be characterized as former testimony under Evidence Code sections 1290 and 1291. (See People v. Sul, supra, 122 Cal.App.3d at p. 368.) However, the trial court reasonably concluded that the Peoples motive in questioning Rauth at the change of plea proceeding was sufficiently distinct from its motive at trial so as to preclude application of the former testimony exception. As noted by the trial court, it was not necessary to address the issue of Lowthers role in the burglary in order to establish a factual basis for Rauths plea. The only fact that needed to be established in the record to support Rauths guilty plea was that Rauth committed the offense. As stated in U.S. v. Preciado (8th Cir. 2003) 336 F.3d 739, 746: "The governments motive at [the codefendants] change of plea hearing was to ensure that the plea was knowing, voluntary, and intelligent and that there was an adequate factual basis to accept it—it had no need or motive to develop testimony about [the defendant]."
Further, there was no indication that Rauths plea agreement required him to testify against Lowther. Thus, to implement the plea bargain at the change of plea proceeding, the People had no need to delve into Rauths statement that Lowther did not aid him. In contrast, if Rauth had testified at trial that Lowther did not assist with the burglary, the People would have had an interest in extensively cross-examining Rauth about Lowthers actions during the offense.
Because the record does not show Rauths plea bargain was contingent upon Rauth testifying against Lowther so as to give the prosecution a motive for further inquiry, we need not discuss whether a plea colloquy is the type of exchange that gives the prosecution a meaningful opportunity for cross-examination in a case where the codefendant reneges on such an agreement at a plea proceeding. (See Commonwealth v. Colon (Pa.Super.Ct. 2004) 846 A.2d 747, 756-757.)
The trial court did not abuse its discretion in finding the former testimony exception was inapplicable to Rauths statement.
b. Declaration Against Penal Interest Exception
Because defense counsel failed to seek admission of Rauths statement as a declaration against penal interest (see People v. Livaditis (1992) 2 Cal.4th 759, 778 [proponent of hearsay must raise applicable exception before trial court]), Lowther seeks review of this issue based on incompetency of counsel grounds. To prevail on a claim of ineffective representation, the defendant must show that defense counsel "fail[ed] to perform as a reasonably competent attorney, and it is reasonably probable that, absent counsels deficiencies, a more favorable result would have been obtained." (People v. Wader (1993) 5 Cal.4th 610, 636; People v. Lucas (1995) 12 Cal.4th 415, 436.) Lowthers incompetency of counsel claim fails because Rauths statement does not meet the requirements for the declaration against penal interest exception.
Under the declaration against penal interest exception to the hearsay rule, a declarants statement is admissible "if the declarant is unavailable as a witness, and the statement, when made . . . so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) In addition to being against the declarants penal interest, the statement must be " sufficiently reliable to warrant admission despite its hearsay character. " (People v. Lucas, supra, 12 Cal.4th at p. 462.) When evaluating reliability, the trial court may consider the words and circumstances under which the statement was made, the declarants possible motivation, and the declarants relationship to the defendant. (Ibid.) The general rule is that only self-inculpatory portions of a declarants statement are admissible under this exception, and collateral, noninculpatory portions are excluded unless they carry sufficient indicia of trustworthiness. (See People v. Lawley (2002) 27 Cal.4th 102, 153-154, 155, fn. 21; LaGrand v. Stewart (9th Cir. 1998) 133 F.3d 1253, 1267-1268; Chia v. Cambra, supra, 360 F.3d at pp. 1001-1008; U.S. v. Paguio (9th Cir. 1997) 114 F.3d 928, 933-934.)
Rauths statement that Lowther did not assist with the burglary was not against Rauths penal interest. We are not persuaded by Lowthers assertion that Rauths statement exculpating Lowther subjected Rauth "to the possibility of the prosecut[ion] withdrawing its assent to the [plea] agreement . . . ." There is nothing in the record to suggest that Rauths plea agreement was contingent on his identifying Lowther as an accomplice, or that Rauth was likely to suffer any negative consequence from changing his earlier statement that Lowther aided him. Nor is there anything in the record to otherwise support the trustworthiness of Rauths statement exculpating Lowther. To the contrary, the reliability of the statement is undermined by the fact that the written plea agreement, signed by Rauth under penalty of perjury, states that Lowther aided Rauth. Because the portion of Rauths statement exculpating Lowther does not satisfy the requirements for the declaration against penal interest exception, Lowthers counsel was not incompetent for failing to raise the exception before the trial court.
2. Due Process
As a general rule, the exclusion of hearsay evidence proffered by the defense does not impermissibly infringe on the defendants constitutional right to present a defense, because a defendant does not have a constitutional right to the admission of unreliable hearsay statements. (People v. Lucas, supra, 12 Cal.4th at p. 464; People v. Ayala, supra, 23 Cal.4th at p. 269.) Although courts have the authority to recognize nonstatutory exceptions to the hearsay rule, the courts do so "cautiously in light of the venerable policy against admitting declarations by witnesses who cannot be cross-examined." (People v. Demetrulias (2006) 39 Cal.4th 1, 27.) However, a due process violation may arise if the defendant shows the trial court excluded "crucial evidence bearing persuasive assurances of trustworthiness." (People v. Lucas, supra, 12 Cal.4th at p. 464; Chia v. Cambra, supra, 360 F.3d at p. 1003.)
As we stated, the record contains no indicia of trustworthiness for Rauths statement at the change of plea proceeding. Rauth had earlier stated under penalty of perjury that Lowther did assist with the offense, and there is no showing that Rauth impaired his own interests by changing this statement.
Contrary to Lowthers contention, the facts of this case are not comparable to those in Chia v. Cambra, supra, 360 F.3d 997. The Chia court held that the trial court erred in excluding a codefendants statements that the defendant had tried to dissuade the codefendant from engaging in the crime because the statements bore strong indicia of reliability. (Id. at pp. 1004-1006.) In Chia, the codefendants statements consistently exculpated the defendant, and the codefendants description of the defendants attempts to stop the crime were consistent with events observed by the prosecutions witnesses. (Id. at pp. 1001-1006.) Here, Rauth did not consistently proclaim Lowthers innocence, but instead first inculpated him and then exculpated him. Further, Rauths statement that Lowther did not assist with the burglary was not consistent with the observations of the prosecution witness who saw Lowther looking over his shoulder as if to check for other people just before the groups entry into the dormitory room area.
Because Rauths statement at the plea proceeding lacked "persuasive assurances of trustworthiness" (People v. Lucas, supra, 12 Cal.4th at p. 464), the trial courts exclusion of the statement did not violate Lowthers due process rights.
II. Substantial Evidence
Lowther argues there was no evidence that he was guilty of burglary either as a direct perpetrator or as an aider and abettor. He contends the evidence merely showed that he was present when the crime was committed and that he took no action to prevent it, and there was no showing he had the intent to commit the theft or to facilitate its commission.
Burglary is committed when a person enters a dwelling with the intent to commit theft or any felony. (§ 459.) A defendant is liable as an aider and abettor when he or she (1) has knowledge of the perpetrators unlawful purpose, (2) intends to commit or encourage the offense, and (3) by act or advice aids or encourages commission of the offense. (People v. Hill (1998) 17 Cal.4th 800, 851.) Although presence at the scene of the crime is not alone enough to establish aider and abettor status, it is a factor that may be considered, along with companionship with the perpetrator and conduct before and after the crime. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) The requisite conduct occurs if the defendant in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures. (Id. at p. 411.) As to intent, a persons knowledge of the criminal purpose and failure to prevent the crime is not sufficient to show aiding and abetting; rather, the person must share the perpetrators criminal purpose. (See People v. Stankewitz (1990) 51 Cal.3d 72, 90-91; People v. Sully (1991) 53 Cal.3d 1195, 1227.) Because intent is inherently difficult to prove by direct evidence, intent may properly be inferred from " the act itself, together with its surrounding circumstances . . . . " (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.)
When reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
If the circumstances reasonably support the trier of facts findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
The UCSD maintenance workers saw Lowther exit an elevator inside the dormitory with Rauth, look over his shoulder to surveil the area as Rauth peered through a dormitory window, and quickly exit the building with Rauth while Rauth was attempting to conceal an item under his shirt. When the police detained the three suspects and queried Rauth about the stolen property, Lowther retrieved the property which was concealed next to him and handed it to Rauth. The jury could reasonably infer that Lowther knew about the burglary because he was seen exiting the building quickly with Rauth while Rauth attempted to conceal the item, and because Lowther knew where the stolen property was at the time of the police detention. Further, the jury could reasonably infer that Lowther intended to, and did, assist Rauth by accompanying him to the campus, serving as a lookout when the group was preparing to enter the dormitory rooms, quickly leaving the campus with Rauth after completion of the burglary, and concealing the stolen property in the back seat of the Lexus. There is sufficient evidence to support the residential burglary conviction under an aider and abettor theory.
DISPOSITION
The judgment is affirmed.
We concur:
HUFFMAN, Acting P. J.
IRION, J.