Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 00F06961
RAYE, Acting P. J.Confronted with compelling evidence of motive, opportunity, identity, flight, and DNA and fingerprint evidence during his 2008 trial, a jury convicted defendant Alejandro Santana of the robbery-carjacking murder of a car salesman while on a test drive in August of 2000. He contends the trial court committed reversible error by admitting another participant’s statements to a friend on the night of the murder because they were testimonial and untrustworthy, and by failing to give appropriate accomplice instructions. He also asserts that the false identification statements he made en route to the United States from Mexico five years after the murder should have been excluded. His contentions are without merit. We therefore affirm.
FACTS
Defendant purchased a maroon Camaro Z28 with a defective transmission a couple of months before the murder. He told several of his coworkers at the post office that he was going to steal a car for its transmission, that he had a gun, that a new transmission would cost $6,000, that he could not afford a new transmission, and that he would need help removing a transmission from another car and putting it into his.
Defendant and his friend Jose Rivera did not go to work on August 22, 2000. That morning, defendant’s father saw defendant with someone who looked like Rivera having breakfast at the restaurant where defendant’s father worked.
Three skinny young men-Anthony Camacho, Jose Rivera, and Theodore Santos-accompanied defendant, who was much chunkier than his friends, to a car dealership later that day. Camacho and defendant went on a test drive in a green or teal Camaro with the victim while Rivera and Santos followed in Rivera’s black Camaro. Defendant, who was sitting in the backseat, shot the salesman in the back of the head. With Camacho’s help, he dumped the body on the side of the freeway.
Witnesses observed three Hispanic males wiping off a greenish-blue Camaro in a parking lot on Q Street. One of the males was chubby, probably weighing between 200 and 220 pounds. The witnesses saw the stocky male get into the black Camaro with his skinny friend and drive away. They went to a park, where defendant tossed a shirt into the river. The shirt was recovered and admitted as evidence at trial.
The four went to Rivera’s apartment. A witness saw a short, thin young male and a heavyset male take a white plastic bag to the dumpster. Police found a pair of blue jeans with a 40-inch waist, a white shirt, and socks in the plastic bag. Defendant admitted the jeans might have been his. DNA testing determined that material found on the jeans was a genetic match for defendant and for the victim.
Rivera called one of his coworkers, Daniel Soto, and asked to exchange cars, purportedly to drive his mother to the hospital. A second coworker, Nathan Brones, accompanied Soto to the exchange and testified that Rivera’s companion was wearing purple sweatpants and worn hiking boots. Soto was “75 percent sure” Rivera’s companion was defendant.
Camacho, Rivera, and Santos were apprehended and tried for murder. Defendant fled to Mexico, where he lived under a false identity for five years. Camacho and Rivera were convicted of murder (People v. Rivera (Sept. 28, 2004, C042375) [nonpub. opn.]; People v. Camacho (Apr. 10, 2003, C042933) [app. dism. by order]); Santos was convicted of being an accessory after the fact (People v. Rivera (Mar. 28, 2003, C042375) [Santos app. dism. by order]).
Santos was a reluctant witness at trial, claiming that the hypnosis he underwent in 2004 helped him to forget the details about the murder. The prosecution, however, played a tape for the jury of an interview he had with a detective on August 24, 2000. During this interview, Santos related the entire chronology of events described above and identified defendant as the “Alex” who needed the transmission and planned to scare the car salesman out of the car but shot him instead, and who then discarded his shirt and maybe his gun in the river.
Alex Gonzales, another friend of defendant from high school, testified that defendant was a bully, overbearing and bigger than all of them. Before the murder, he had purchased a Cobra at the same car dealership. He returned on several occasions because the car had many little problems that needed fixing. He asked if he could exchange his Cobra for the teal Camaro. Rivera and Santos teased Gonzales about his car because it was not “as fast as a Z28.” Defendant argued that witnesses who referred to “Alex” meant Alex Gonzales, and he, not defendant, was responsible for the shooting.
Defendant was arrested in Mexico in July of 2005. He was deported. The facts surrounding the statements he made en route to California will be discussed below. Suffice it to say, he was tried for murder and convicted following his jury trial.
DISCUSSION
I
Defendant contends the admission of the incriminating statements Rivera made to his friend and casual lover, Amber Morgan, constitutes prejudicial error. We begin by dismissing any notion that this alleged error, either individually or cumulatively with the other errors he asserts, would have been prejudicial. As chronicled above, the evidence of guilt was not merely substantial, but overwhelming. Seldom do we see such compelling evidence of motive, opportunity, identity, forensic evidence, and flight. We could end our discussion there, since even if we sustained each of defendant’s allegations of error, he would not be entitled to a reversal. However, we will address each of his three allegations of error, and conclude each lacks merit.
Defendant challenges the admissibility of Rivera’s statements on two grounds: (1) he contends the statements were testimonial and therefore inadmissible pursuant to Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford) because a reasonable person would have anticipated that the recipient would have revealed them to law enforcement and they would have been used at trial, and (2) if they were not testimonial, they were untrustworthy because they were uttered by an accomplice who sought to minimize his own involvement. We begin with an examination of the statement itself.
Amber Morgan was an assistant manager at the apartment complex where Rivera resided. After he moved into the complex in May of 2000, they became close friends and casual lovers. About 10:00 p.m. on August 22, 2000, Rivera called Morgan and asked if he could see her. He drove to her apartment and confided in her that he had been involved in a murder. He explained that he owed a friend a favor and agreed to drive him to a car dealership so the friend could steal a car for a new transmission. Unbeknownst to him, his friend had a gun, and he accidentally shot the car salesman who accompanied them on a test drive of the car he planned to steal, then pushed the salesman out of the car onto the side of the freeway. Rivera was nervous; in fact, he was crying as he explained what had happened. He lamented that “peer pressure is a bitch.” Morgan encouraged him to go to the police, but Rivera refused because he did not want to “snitch” on his friends. He told her that if he was confronted he was going to “come out clean, ” but he was not going “to walk into the police department and... snitch out my friends.” Morgan told Rivera that if the police came looking for him, she was going to have to give them information about where he lived and a description of his car. As Morgan and Rivera watched a news report on television (even though the sound did not work), Rivera got a call on his cell phone and she heard him say that he would meet the caller later. Rivera told Morgan he was going home to sleep, but when she spoke to him later, he was awake and very nervous.
The trial court found that Rivera’s statements were not testimonial and did not violate the confrontation clause protections enunciated in Crawford, supra, 541 U.S. 36. Moreover, the court also found that the statements were clearly against Rivera’s penal interests and were trustworthy. The court explained, “While the fact that a person seeks to shift blame to another may indicate that the statement is not against interest, that is not so where the recitation appears to be a truthful account of the events, and the statements made, taken together, are so clearly against one’s interest a person would not make such a statement unless they believed it true.”
The trial court asked the right questions in the right order. “Because Crawford applies only to ‘testimonial statements, ’ we must first determine whether [the declarant’s] statement falls into that category. If the statements are testimonial, the only acceptable indicia of reliability is confrontation. If the statements were nontestimonial, then we may consider whether they can be admitted consistent with the hearsay rules of evidence.” (People v. Cervantes (2004) 118 Cal.App.4th 162, 173 (Cervantes).) Indeed, because Cervantes is factually analogous to the case before us, it provides an analytical template and an apt application of the law to remarkably similar facts.
In Cervantes, as here, an accomplice told a neighbor what had occurred during the commission of the charged offenses. In both cases, the statements were made within hours of the crime, and although the declarants incriminated themselves, they ascribed greater responsibility to the perpetrators and reserved for themselves comparatively minor roles.
The court in Cervantes rejected the notion that statements made to a neighbor under these circumstances fell within the meaning of “testimonial.” It is true the United States Supreme Court left open the meaning of testimonial, only offering a few exemplars of statements it considered testimonial. Applying Crawford, the Cervantes court wrote, “Initially, it appears clear that [the declarant’s] statement is not similar to the primary examples of testimonial statements given in Crawford, namely, grand jury testimony, prior trial testimony, ex parte testimony at a preliminary hearing, or statements taken by police officers in the course of interrogations.” (Cervantes, supra, 118 Cal.App.4th at p. 173.) The accomplices in Cervantes argued, as defendant does here, that testimonial statements include those made under circumstances that an objective witness would reasonably believe would be available for use at trial. (Id. at pp. 173-174.) The court in Cervantes made no attempt to evaluate the contours or nuances of such an expansive definition of “testimonial” because it concluded the declarant made the statement without any reasonable expectation it would be used at a later trial.
In People v. Taulton (2005) 129 Cal.App.4th 1218, however, the court concluded that the test for determining whether a statement is “testimonial” under Crawford is not whether its use in a potential trial is foreseeable, but whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should be filed. (Taulton, at pp. 1223-1224.) Although the logic of Taulton is sound, we will follow the Cervantes lead to give defendant the benefit of every possible argument he may have. Clearly, Rivera’s statements would not be testimonial under Taulton as they were not obtained for the purpose of using them in a criminal trial.
Morgan had no connection to law enforcement. She was not an agent of the police, but a friend and confidant of Rivera. He went to her seeking comfort and solace within hours of the murder while he was still shaking and nervous. Defendant, like the accomplices in Cervantes, argued the statements were testimonial because Rivera made the statements to his friend “knowing she would repeat [them] to the police, as she eventually did.” (Cervantes, supra, 118 Cal.App.4th at p. 174.) But the possibility that a friend may eventually be compelled to testify does not transmute every confidential communication into testimony. Thus, we too conclude it was not objectively reasonable for Rivera to believe the statements he made against his penal interest to his friend and casual lover would be available for use at trial. In short, his confession was not testimonial within the meaning of the right to confrontation.
The more difficult question is whether his nontestimonial statements bear sufficient indicia of trustworthiness so as to render them admissible against defendant. “There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 334 (Greenberger).) While the court in Greenberger assumes that the scope of appellate review is limited to a finding of an abuse of discretion, the court in Cervantes concluded it was appropriate to conduct de novo review of the totality of the circumstances surrounding the making of the statement. (Cervantes, supra, 118 Cal.App.4th at pp. 174-175.) Again in deference to defendant, we will apply a de novo standard of review without deciding whether in other cases the more onerous standard would be demanded.
Defendant argues Rivera’s statements inherently are not trustworthy because he sought to minimize his own culpability by shifting blame to defendant and the others. Greenberger acknowledged the particular dangers involved when one accomplice turns on another: “Clearly the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others. ‘Once partners in crime recognize that the “jig is up, ” they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.’ [Citation.] However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]” (Greenberger, supra, 58 Cal.App.4th at p. 335.)
The court in Cervantes, however, navigated the same treacherous terrain with an evaluation equally applicable to the similar facts presented here. The court wrote: “The evidence here showed [the declarant] made the statement within 24 hours of the shooting to a lifelong friend from whom he sought medical treatment for injuries sustained in the commission of the offenses. Further, it is likely [the declarant] wanted to have his wounds treated without going to the hospital. Regarding the content of the statement, [the declarant] did attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez. Thus, [the declarant’s] statement specifically was disserving of his penal interest because it subjected him to the risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true.” (Cervantes, supra, 118 Cal.App.4th at p. 175.)
So too did Rivera subject himself to the risk of criminal liability by confessing to Morgan that he helped defendant, knowing defendant planned to steal the car during a test drive. While he, like the declarant in Cervantes, ascribed primary responsibility to others for the eventual shooting, he accepted for himself an active role in the crime, admitting his involvement in the planned carjacking as well as in helping to wipe down the stolen car after the carjacking and murder. As a consequence, his statements subjected him to prosecution. It is unlikely he would have indicted himself to his friend and lover in a manner clearly at odds with his penal interests if his statements had not been true.
Defendant adds rampant speculation to his argument. He asserts Rivera was attempting to avoid the felony murder rule and curry his girlfriend’s favor to maintain the relationship, and concealed defendant’s name to give only a partial accounting of what had occurred. There, of course, is no evidence Rivera has the sophistication to know the felony murder rule or its implications, he need not have told Morgan anything about the events of the shooting if he wanted to curry favor with her, and he could have withheld defendant’s name for the very reason he told Morgan he would not go to the police-he was loyal to his friends and did not want to “snitch” on them.
Like the court in Cervantes, we conclude that Rivera’s statements to Morgan are inherently trustworthy as a declaration against his penal interest made in the privacy of his girlfriend’s apartment within a few hours of the events he described. Moreover, he was tearful, nervous, and scared, and divulged his secrets before he had any inkling of an impending arrest. Rather, he went to her for comfort and support, and implicated himself in the murder of the car salesman. Under the totality of circumstances presented here, there are sufficient particularized guarantees of trustworthiness to assure us Rivera’s statements were reliable and the rigors of cross-examination were unnecessary.
II
In a related argument, defendant argues for the first time on appeal that the accomplice instructions were flawed because the trial court failed to instruct sua sponte that Rivera was either an accomplice as a matter of law or the jury should have been directed to decide whether he was an accomplice and further instructed that accomplice testimony requires corroboration. There is no question that Rivera was an accomplice; he was convicted of the murder of the car salesman while defendant remained in hiding in Mexico. Defendant asserts, therefore, that the use of Rivera’s out-of-court statements required corroboration despite the fact that Rivera did not testify at defendant’s trial. His argument fails for two reasons.
First, Rivera’s “extrajudicial statement[s were] not ‘testimony’ within the meaning of [Penal Code] section 1111 and therefore did not require corroboration. The usual problem with accomplice testimony-that it is consciously self-interested and calculated-is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.” (People v. Sully (1991) 53 Cal.3d 1195, 1230.) Section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
We decided above that Rivera’s out-of-court statements were not testimonial and did have sufficient indicia of reliability to assuage any constitutional concerns about their trustworthiness. “‘[W]hen the out-of-court statements are not given under suspect circumstances, those statements do not qualify as “testimony” and hence need not be corroborated under [Penal Code] section 1111.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 245.) Because we made the threshold determination that Rivera’s out-of-court statements were not “given under suspect circumstances” but rather those circumstances provided sufficient indicia of reliability, Rivera’s extrajudicial account to Morgan does not qualify as testimony and did not require corroboration pursuant to section 1111.
Second, Rivera’s statements connecting defendant to the crime were corroborated by an abundance of evidence. Thus, any failure to give more than the generous array of accomplice instructions given was harmless. (See CALJIC Nos. 3.11 [testimony of accomplice must be corroborated], 3.10 [accomplice-defined], 3.12 [sufficiency of evidence to corroborate an accomplice], 3.16 [witness accomplice as matter of law], & 3.18 [testimony of accomplice to be viewed with care and caution].)
The trial court instructed the jury that Theodore Santos was an accomplice as a matter of law and therefore his testimony was subject to the rule requiring corroboration. Santos, who had been found guilty as an accessory after the fact, did testify at defendant’s trial. As the Attorney General points out, “[m]ere accessories are not accomplices under [Penal Code] section 1111, ” and a defendant is not entitled to accomplice instructions. (People v. Howard (1992) 1 Cal.4th 1132, 1173.) Ironically, the jury was given a panoply of accomplice instructions that were unnecessary since Santos was not an accomplice and Rivera did not provide unreliable testimony.
The prosecution connected defendant to the crime by physical evidence, including the palm print on the stolen teal Camaro and his DNA, as well as the salesman’s blood and DNA, on the clothes found in the dumpster. The prosecution also offered the testimony of several of defendant’s coworkers that defendant planned to steal a car for transmission parts because his car’s transmission was broken. More significantly perhaps, several witnesses provided physical descriptions of an overweight young Hispanic that matched defendant’s appearance and dress at the time of the commission of the crime. As a result, any possible instructional error was harmless. (People v. Zapien (1993) 4 Cal.4th 929, 982.)
III
Finally, defendant contends the trial court committed reversible error by allowing a police detective to testify that defendant falsely identified himself. He insists the information the detective elicited prior to giving him the required Miranda warnings did not fall within the “booking exception” because the questions were for an investigative, not an administrative, purpose. We turn first to the record.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
Suspicious that he had fled to Mexico, Detective John Keller tried to locate defendant for five years. The FBI was also involved in the search and ultimately located defendant working in a hair salon in Mexico City. The FBI informed Keller that defendant would be deported and Keller, together with a Sacramento FBI agent, could pick him up in Houston and transport him to Sacramento. Although defendant was using the name Roberto Benitez, he was positively identified as Alejandro Santana by the Mexican immigration authorities and this information was conveyed to Keller. One of the immigration officials showed an FBI agent a Mexican voter registration card with defendant’s picture and the name Roberto Benitez Arizmendi.
Keller met defendant at the Houston airport. He was unsure if defendant was, in fact, Alejandro Santana because he appeared to have lost a lot of weight. The FBI agent assured Keller the man in custody was Santana, but Keller was not convinced. Defendant was restrained. He was not given his Miranda advisements.
A few minutes into the flight from Houston to Sacramento, Keller said to defendant, “[H]ey, I know you’re Alejandro Santana.” Defendant replied, “[N]o, I’m Roberto Benitez.” During the course of the flight, defendant continued to deny that he was Alejandro Santana. Either the FBI agent or Keller asked defendant, hypothetically, what a guy would do to avoid being arrested if he were on the run. Defendant stated someone might “cut all ties with family, ... start a new life, don’t look back, don’t go back.”
Before reading defendant his Miranda rights at the police headquarters in Sacramento, Keller again asked defendant his name and defendant again replied, “Roberto Benitez.” Keller confronted him, explaining there was no need to continue the ruse. But defendant denied he was Santana. Once he was read his rights, defendant invoked his right to remain silent. He was fingerprinted again and the live scan result confirmed the fingerprints belonged to Alejandro Santana.
Defendant moved to exclude all his statements to the police officers during transit, including his false identification. The trial court granted the motion to exclude all the statements made during the transportation except the initial biographical questions. The court explained, in pertinent part: “In this case, the defendant was unquestionably in custody. The issue is whether the questions posed to him constituted interrogation. [¶]... [¶] Routine booking questions do not constitute a violation of Miranda as the Supreme Court has recognized an exception for questions that are posed during the booking process, such as biographical information that is not of an investigative nature, but rather is the identifying data required for booking and arraignment. Ordinarily, the routine gathering of background biographical data will not constitute interrogation. US ex rel. Hines v. La Valle (521 F 2nd 1109) PA v. Munis [sic-Muniz] 496 U.S. 583 [sic-582]. The Supreme Court[’s] concern is protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment. Using that rationale, the initial question to Santana about his name, is not a question that the officers should have known would be reasonably likely to elicit an incriminating response. Therefore, the initial question posed to him does not constitute interrogation, and his response is admissible. [¶] However, once the defendant responded, additional questions, including persistent questions about his identity, and the posing of ‘hypothetical’ questions are interrogation, and outside Miranda.”
“‘The Miranda safeguards are not necessary at a proper booking interview at which certain basic information is elicited having nothing to do with the circumstances surrounding any offense with which the defendant has been charged. [Citations.] The booking procedure, as defined by statute (Pen. Code, § 7, subd. 21), has been described as “essentially a clerical process.” [Citation.] The limited information needed at a booking procedure is required solely for the purposes of internal jail administration, not for use in connection with any criminal proceeding against the arrestee. When use of this information is confined to those proper purposes, its elicitation cannot be considered incriminatory.’ [Citation.] Consequently, the rights enumerated in Miranda, specifically the right to remain silent and the right to counsel, are not implicated by questions relating only to booking information. Identification of the arrestee is a necessary and legitimate part of the booking process [citation].” (People v. Powell (1986) 178 Cal.App.3d 36, 39-40.)
Defendant argues the questions were not part of a clerical booking procedure but were designed to elicit incriminating admissions. He points out that Detective Keller asked him to identify himself when they were in Houston, long before the initiation of any formal booking in Sacramento. Thus, he insists the questions did not fall within the “‘booking question’ exception” to the Miranda rule of inadmissibility. (Pennsylvania v. Muniz (1990) 496 U.S. 582, 601 [110 L.Ed.2d 528].)
Although we conclude defendant propounds an unnecessarily restrictive scope to the booking exception, we need not determine the outer boundaries of the exception here. The trial court excluded all the damning statements defendant made during the long flight to Sacramento except the initial question to obtain biographical information. Those statements were excluded because, as the court clearly stated, “the defendant was unquestionably in custody” and interrogation in the absence of Miranda advisements is prohibited. Thus, the issue whether the initial question about defendant’s name and his responsive lie should have been excluded, either because it did not constitute interrogation since it was not designed to obtain an incriminating response or because it fell within the booking exception, is but a footnote in this trial, and it is inconsequential whether the response was admitted or not.
There was uncontroverted evidence that defendant hid his identity for five years. He lived under an assumed name in Mexico. His Mexican voter registration card represented that he was Roberto Benetriz. As a result, the testimony that he also told Detective Keller that his name was Roberto Benitez Arizmendi and denied he was Alejandro Santana was cumulative to the abundant evidence of consciousness of guilt the jury had already heard. On this record, the error, if any, in allowing Keller to testify that defendant gave a false identity is harmless beyond a reasonable doubt and does not constitute reversible error under any standard.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for serious and violent felonies. (§ 4019, subds. (b) & (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is modified by striking the parole revocation restitution fine as recommended by the Attorney General because defendant was sentenced to life in prison without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: ROBIE, J. BUTZ, J.