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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Daryl B. HAYNES, Defendant and Appellant.

No. A078379.

Decided: May 20, 1999

Stephen B. Bedrick, Counsel for Defendant and Appellant. Daniel E. Lungren, Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, Susan Duncan Lee, Eric D. Share, Deputy Attorneys General, Counsel for Plaintiff and Respondent.

Daryl B. Haynes was convicted by a jury of:  Count 1-first degree murder of Timothy Byers (Pen.Code, § 187) with use of a firearm (Pen.Code, § 12022.5);  Count 2-attempted premeditated murder of Michael White (Pen.Code, §§ 187, 664), with a firearm and infliction of great bodily injury (Pen.Code, § 12022.7);  Count 3-attempted premeditated murder of James Hammonds, with a firearm and great bodily injury;  and Count 4-possession of a firearm by a felon (Pen.Code, § 12021).   The court found that appellant had served prison terms for possession of narcotics for sale.   (Pen.Code, § 667.5, subd. (b).)

Appellant was sentenced as follows:  Count 1-25 years to life for murder, plus the upper term of ten years for use of a firearm;  Count 2-indeterminate life sentence for attempted murder, plus ten years for firearm use, and three years for infliction of great bodily injury;  Count 3-same sentence as Count 2;  and Count 4-two years, stayed (Pen.Code, § 654), for firearm possession.   One year was added to the determinate sentence for each of the prior prison term enhancements.   All terms and enhancements were ordered to run consecutively.   Thus, appellant received one term of 25 years to life, plus two indeterminate life terms, plus a 38 year determinate sentence.

The principal issues on appeal concern the admission at trial of statements made by an unavailable witness.   Appellant also contends that the court erred in excluding certain defense evidence, that his counsel was ineffective for failing to request a jury instruction, and that the court gave inadequate reasons for some of its sentencing choices.   We affirm.


The victims, Byers, White and Hammonds, were smoking crack cocaine with Hammonds' fiance, Denise Conley, in room 16 of the Maya Motel in Oakland around 8:45 p.m. on April 3, 1996, when they heard a knock on the door.   When Conley opened the door, someone with a semi-automatic rifle fired 17 shots into the room.   Byers was hit by at least five bullets and died from the bullet wounds.   Hammonds was shot in the leg and had to have surgery to repair his left thigh bone.   White was found in an alley behind the motel, lying on top of what had been a window in room 16 on the second story.   White had been shot twice, and had a major fracture of his left arm as well as multiple rib fractures.   Hammonds and Conley testified that when they saw White after the shooting they noticed that part of his arm had been amputated.

Witnesses testified that appellant and Shaun “Holiday” Carter both sold drugs in the area around the Maya Motel.   Appellant and his girlfriend, Brandi Pratt, stayed on and off at Janet Walker's house next to the motel.   About two weeks before the shooting at the motel, appellant had been shot and grazed in the head by a bullet in front of Walker's house.

On the evening of April 3, appellant borrowed a car from his sister, Stephanie Young, and he went with Pratt to San Leandro to look at a car being sold by Doug Matichak.   They called Matichak twice from the cellular phone in Young's car to ask for directions, and billing records for the phone showed that the second call was placed at 8:08 p.m. Matichak remembered an African-American couple coming by to look at his car that night.   He testified that they arrived about five minutes after their second call for directions, and stayed for 10-15 minutes at most before they left without buying the car.

An investigator for the District Attorney's office confirmed that it takes 13 to 14 minutes to drive under the speed limit from Matichak's house to the Maya Motel.   Walker testified that appellant came by her house between 8:30 p.m. and 9:00 p.m. on April 3rd to pick up the “big gun” he had asked her to hold for him the night before.   According to Walker, appellant was “upset, cursing, mad.”   As he left her house with the gun he said, “nobody is selling dope around here but me.”   A few minutes later, Walker heard gunshots at the Maya Motel.   Walker said she was nervous about testifying at trial because about two months earlier some of appellant's friends had told her they would kill her if she testified against him.

Hammonds and Conley were staying in room 16 at the motel.   They had both bought drugs from time to time from appellant and Holiday Carter.   Carter, who also lived at the motel, had stopped by their room on the day of the shooting.

Conley testified at trial that she knew appellant by his nickname, “D,” and she identified “D” as the gunman when she was interviewed by Sergeants Banks and Olivas in the hours after the shooting.   Banks testified that Conley was very upset during the interview, and started screaming when she was shown appellant's picture in a photo lineup.   Conley's audiotaped statement on the night of the shooting was played for the jury.   In it, she said that the man in picture number two in the lineup did the shooting and that the man in the photo was “D” for “Daryl.”   Before identifying appellant by name on the tape, Conley asked, “Do I have to?”   Conley said on the tape that, after the knock on the door, someone identified himself as “Marty, Mitch” or something that started with an “M,” and that she heard two different voices outside the room during the incident.   Banks testified that Conley called her three weeks after the incident and said that “Mike” had been with appellant when the shooting occurred.

An officer who first arrived at the scene of the shooting testified that Hammonds said he knew who had shot him and would “get” him.   Banks and Olivas spoke to Hammonds in the hospital the morning after the shooting.   His leg was heavily bandaged and he was in pain, but according to Banks he was alert and cooperative.   Hammonds told them “D” had shot him, identified appellant in a photo lineup, and with some difficulty signed the back of appellant's picture.   Hammonds' taped statement was played for the jury.   In it, he said that he saw his friend “D” standing outside the door to room 16 with a gun.   Hammonds said, “man, you don't need that thing,” but appellant started shooting.   Hammonds thought that appellant might have been mad at him because Carter had been over to the room about an hour before the incident.   He thought appellant was having “business” problems with Carter, and he knew that appellant had recently been shot.   Hammonds denied at trial that he had dealt drugs out of room 16 in the three or four months he lived there.

On the evening of the shooting, Claire Urmson was visiting a friend who lived near the Maya Motel.   When she heard the shots, she went out on the porch and saw an African American male running from the direction of the motel with a rifle sticking out of his jacket.   She got a good look at the man and saw his face from a “three quarter angle profile.”   She is an art student, trained to remember features, and she recalled that there was a “smooth roundness” to the man's head, and that the man had “full lips” and a “puggish nose.”   Urmson testified that appellant looked “similar” to the man she saw.   She said he had a “smooth and good looking face” like the man she saw.

Appellant did not take the stand in his defense.   Pratt testified that she and appellant went straight back to Stephanie Young's house after looking at Matichak's car.   She said they arrived there around 9:25 or 9:30 p.m. Appellant's brother John testified that appellant was at Young's house when he arrived there around 9:20 or 9:30 that night.   He said it takes about 20 to 25 minutes in light traffic to drive from the vicinity of the Maya Motel to Young's house.

Young testified that appellant and Pratt had returned to her home about 8:30 or 8:35 p.m. She said she remembered the time because her husband had returned home earlier than usual that night from his regular basketball game, and arrived there five minutes before appellant and Pratt.   Young said she has “a habit at looking at the clock whenever something happens.   I watch too many cop shows.”   She said she is “an avid crime drama fan and always amazes me when people are asked what time a certain event occurs, no one ever knows.   So, I just became a time watcher, I guess.”   Young admitted that her cell phone was not taken out of the car that night, and could not explain the calls listed on the bill for that phone at 8:57 and 9:22 p.m.

The incriminating evidence elicited from the prosecution's principal witnesses was impeached in various ways.

At trial Hammonds recanted his earlier identification of appellant.   Hammonds denied having seen appellant with a rifle in the doorway of room 16.   He testified that when Conley opened the door he could see a rifle but not the person holding it, who was behind the door.   Hammonds said it is difficult to focus your eyes when you are smoking crack.   Hammonds said that the signature on the back of appellant's picture from the photo lineup “start[ed] off” like his signature, but that it was “messy” and he could not remember writing it.   He was on medication when he spoke to the police at the hospital and did not remember saying that he had seen two people at the door.   He did not remember telling the police that he heard someone at the door say “It's Mike,” or that he thought he heard appellant's voice at the door.

In the statement Conley gave to the police at the scene, she denied seeing who was at the door when the shots were fired.   The officer who took Conley's statement testified that people at the scene are sometimes not “being totally up front” because they are nervous or scared and there are a lot of people around.   Thus, Conley was taken to the police station for more questioning.

At trial Conley said she remembered being interviewed by the police about six or seven hours after the shooting, but said she could not remember what she told them.   She did not remember telling Sergeant Banks that she had heard someone outside the door of room 16 say “hey Tim.” She did not remember saying that she saw “D” fire the shots.   She remembered that Banks showed her a series of photographs, and acknowledged that she “probably” identified appellant as the shooter from the photos.   However, she was “upset” and “high” at the time, and insisted at trial that she did not see who did the shooting.

According to the transcript of the preliminary hearing, Conley had testified that she “saw Daryl with a gun.”   At trial, she said her statement was that she “saw the barrel of a gun.”   She could not remember testifying that she heard appellant's voice when she saw the gun.   She vaguely remembered testifying that she heard a voice that “could have been Daryl” say “what's up.   Hey Tim. Mike, what's up.”

Conley testified at trial that after hearing the knock on the door she went over to the door and asked who it was.   Conley first said she did not remember whether there was any response to the question.   She then said a voice outside might “possibly” have said, “it's Mike.” She then said she “guess[ed]” she had heard a voice say “Marty or something like that.”   It was “Marty, Mitch,” or something that maybe started with an “M.” When she opened the door to see who it was, all she saw was the barrel of a gun through the door;  she did not see who was holding the gun.   She ended up behind the door, and saw only dark pants through the door.   Conley said she did not want to be in court testifying.   She did not “want to have anything to do with this.”

Walker admitted at trial that when she was questioned by a police officer on the night of the shooting, she said only that she had heard the shots and did not mention that appellant had stopped by her house to get a gun.   She said she was afraid when she was first asked about the incident.   About three weeks later, when the police brought her in for further questioning, she told Sergeant Olivas about appellant and his gun.   Walker said that she was high on crack and alcohol during her interview with Olivas, but was “clean and sober” by the time of trial.   Walker variously testified that she had bought cocaine from appellant, that she had not bought cocaine from appellant, and that when she told the police that she had bought cocaine from appellant, that was wrong.

In cross-examination, Walker said that when she was brought in for questioning, the police told her they would lock her up if she did not give them a statement.   They said they would arrest her for the drugs she had out in her house when they picked her up, so she was going to give them a statement, “anything they wanted to hear.”   However, she insisted that she had told Sergeant Olivas the truth.

Urmson's testimony was called into question by her friend Kami Springer.   Urmson was at Springer's house when she observed the man running from the the Maya Motel.   Urmson told Springer on the night of the shooting that the man she saw had a rifle, but then later said it was not a rifle.   After Urmson testified at trial, she told Springer that while appellant could have been the one she saw running that night, she did not think it was him because the man she saw that night was heavier than appellant.   She said that appellant looked similar to the man she saw that night, but that she could not really tell if it was the same person.   Urmson also said that appellant was “a fine looking young man,” whereas the man she saw running was not.   Springer said that Urmson did not want to get involved, and was worried about everyone's safety.

Appellant's brief notes that the prosecution's case depended on the testimony of witnesses who were “drug addicts, drug sellers, liars, convicted felons, people testifying to avoid prosecution (Janet Walker), and people who would change their own story at the drop of a hat․  Every percipient prosecution witness totally changed their story from one point to another.   Each necessarily lied in court, or to a police officer, or perhaps both.”   Respondent notes that appellant's alibi defense was weak because Young's testimony that he was at her house when the shooting occurred was contradicted by her car phone records and by Pratt.

After hearing evidence and argument over the course of about eight court days, the jury deliberated for over four days before reaching its verdicts.


A. Evidence From Sylvia Gregory(1) Record

Another eyewitness to the shooting who, like Hammonds and Conley, initially identified appellant as the gunman but later changed her story was Sylvia Gregory, the girlfriend of the murdered man Byers.   Gregory testified at the preliminary hearing in the case but was determined to be unavailable for trial.   Portions of Gregory's preliminary testimony were read into the record at trial.   An audio tape of Gregory's statement to the police in the aftermath of the shooting was played at the preliminary hearing and for the jury at trial.   Sergeant Banks testified to statements Gregory made during her interview before those recorded on the tape.   Deputy District Attorney Vukasin testified to statements Gregory made around the time of the preliminary hearing.   Sergeant Olivas, who was called as a defense witness, testified to Gregory's statements at the crime scene, and to her identification of appellant in a photo lineup in the hours after the shooting.

Olivas said that Gregory, like Conley, did not identify appellant when she was initially questioned at the crime scene, but then did so a few hours later when she was questioned at the police station.

Banks testified that during the interview at the station Gregory said she was waiting in room 14 of the Maya Motel while Byers visited room 16.   She said she went outside onto the second floor balcony of the motel when she heard someone outside saying “Fuck that.   Fuck that.”   Appellant was down in the driveway holding a rifle and asked her, “Bitch, are you selling dope up there?”   She went back into her room and then saw appellant walk by her room with a gun to room 16.   There was a knock on the door of room 16, she heard appellant say “Mike” or “Mitch,” and then she heard shooting.   When Gregory recounted this, she was afraid but did not appear to be under the influence of drugs.   Banks interrupted the interview and got a photograph of appellant along with others.   Gregory identified appellant as the assailant by signing the back of the photo.

In her taped statement that night, Gregory said that she opened the door to room 14 when she heard loud voices outside.   She looked out into the parking lot, and saw appellant “standing down there with this big gun and pointing it up, and he said ‘what's up over there?’ ”   Appellant was with “Mike,” “the guy he calls his brother.”   Appellant pointed the gun up at her and said, “who is selling dope up there?”   He called her a “bitch” and told her to get back in the room.   She went into her room, cracked the door and peeked out.   She saw appellant go to room 16 and Mike, who was unarmed, arrive there from a different direction.   Appellant stepped back while Mike knocked on the door.   After Mike said his name the door opened, and appellant said he needed to see Hammonds.   Gregory shut her door when she saw appellant raise his gun and point it into room 16, and then she heard a lot of shots.

Gregory said on the tape that Hammonds was selling drugs for Holiday Carter.   This upset appellant “because Holiday used to be around years ago and he ran the motel, you know what I'm saying?   It's like he left, and Daryl come around there, and since he left and Daryl been around, it was like you can't come back here and sell dope.   So they had a thing, plus he thinks Daryl thinks that Shaun is the one who shot him in the head.   So he doesn't want him around there.”   About three nights before the shooting, Gregory had heard appellant say “Y'all need to get your asses off Shattuck, you can't just be standing around here, nobody would move, and he said y'all going to keep on and I'm going to shoot me somebody here on Shattuck.”   Appellant “told everybody in the motel that nobody better be selling the dope.”   He said “they either work for me or they ought not to be at that motel ․ selling no dope.   Period.  Nobody.”

Gregory said on the tape that appellant's reputation in the neighborhood was that “he goes for bear, it is like if you do something to ‘D,’ he is going to either beat you up or shoot you that's how he is.”   Appellant usually carried two handguns in his coat pocket.   She was afraid that appellant might harm her “because he knows I seen him.”   Gregory was shown eight photographs of black males and identified appellant as the person who committed the crimes.   Gregory said she saw him kill her boyfriend.   She was “positive” about the identification.   She was not intoxicated when she saw appellant with the gun.   She concluded the taped statement by insisting that everything she had said was “the honest to God's truth.”

Sergeant Banks testified that she made no threats or promises to Gregory during the interview.   After Gregory's interview was finished, Banks arranged for her to stay at a motel for two or three days.

District Attorney Vukasin testified that when she spoke with Gregory in jail three months after the shooting, Gregory told her she wanted to tell the truth, and that “D” was the shooter.   However, Gregory's attitude had changed by the time of the preliminary hearing.   Gregory asked Vukasin before the hearing how she could “make her come into court and say in front of Daryl Haynes that he was the person that killed her boyfriend.”

Vukasin noticed that when Gregory first took the stand at the hearing, she looked over at appellant and smiled at him, and he smiled back at her.   When Vukasin played Gregory's taped statement back to her after her first day of testimony at the hearing, Gregory told her “over and over again that it was the truth.”   However, Gregory was “terrified” about resuming the stand because her boyfriend had told her that appellant “would have her two sons taken into the middle of a field and killed” if she testified against him.

Portions of Gregory's testimony at the preliminary hearing were read into the record by Vukasin.   Gregory testified that she saw a guy with a long object that could have been a gun coming up the back steps around 8:50 p.m. Her testimony was that she had never seen the man before.   When the man walked by her room, he asked her who was selling drugs.   She was high on crack at the time.   The man knocked on the door of room 16, and when the door opened he said “what's up you all” and then Gregory heard shooting.   She had “no idea who shot that gun.”

Gregory was questioned at length about her interview with the police on the night of the shooting, and denied making many of her tape-recorded statements, even though she acknowledged that it was her voice on the tape.   She said she was in “shock” after the shooting, and that there were “a lot of things I don't remember saying on that tape.”  “And then, too, it was right after the shooting.   I could have said anything.   And everybody was saying Daryl's name.   I might have said Daryl's name, also.   But what I'm telling you right now, out of my mouth, he did not do the shooting.”   She denied seeing someone named Daryl standing in the parking lot with a big gun, and could not remember telling Sergeant Olivas that.   She did not remember talking to appellant three days before the shooting about drug dealing in the area.   She admitted signing the back of appellant's photo, but said she did so only because she was asked if she knew any of the people in the pictures Olivas and Banks showed her.   She did not tell them right after signing the photo that appellant had killed her boyfriend.

Gregory denied telling the district attorney that appellant would kill her or her two sons if she told the truth.   However, she did acknowledge that someone had called her on the first day of the preliminary hearing and threatened something about her two children.   She also conceded that she might have told the police that Hammonds was selling drugs for Holiday Carter.   The tape recording of Gregory's police statement was played at the end of her initial direct examination at the hearing.

In her cross-examination, Gregory said that the police did not put her under oath when she made her statement.   She said that she was pretty loaded on crack, alcohol and valium on the night of the shooting, and that she was still dazed and high when she talked to the police.   She said she did not leave her room until five or six minutes after the shooting, and never saw anyone with a gun.   Some people told her that the ones who were shot were friends of Carter, and people were mentioning appellant's name because he had recently been shot.   When she talked to the police she was concerned that they might do something to her probation if she did not give them any information.

On re-direct, Gregory said the police never threatened her.   She said she had talked to Conley immediately after the shooting.   Her testimony about the conversation was:  “She didn't tell me anything.   She said she think Daryl shot these people.   She thinks Daryl shot these people.”

(2) Threshold Considerations

It is undisputed that Gregory's preliminary hearing testimony was admissible at trial.  (Evid.Code, § 1291, subd. (a)(2) [unavailable witness previously subject to cross-examination].)   Gregory testified that Conley had identified appellant as the assailant immediately after the shooting, and her testimony furthered the case against appellant in at least two other respects.   Her admission that she “might” have told the police that Hammonds sold drugs for Carter, together with the “nobody is selling dope around here but me” statement attributed to appellant by Walker, and the evidence that Carter and appellant both sold drugs in the area, tended to establish a motive for the shooting.   Gregory's acknowledgment of a threat against her children, coupled with the threat reported by Walker, supported an inference that witnesses were being intimidated into changing their stories.   However, most of Gregory's testimony was of no help to the prosecution because she denied seeing appellant on the night of the shooting and denied having told the police otherwise.

 Appellant contends that Gregory's most incriminating statements-those she made in her tape recorded interview, and those recounted by the police and district attorney-were erroneously admitted into evidence.   Defense counsel made several hearsay objections during the testimony of Vukasin and Banks, but did not object to the whole of their testimony or to introduction of the recorded interview.   Evidentiary objections not raised at trial are waived for purposes of appeal.  (Evid.Code, § 353.)   However, appellant contends that his counsel was incompetent to the extent that he did not object to the introduction of all of Gregory statements other than those at the preliminary hearing.   If this evidence was inadmissible as appellant claims, then there was no valid tactical reason for counsel's failure to object to it.   Accordingly, to the extent that appellant's evidentiary objections would otherwise have been waived by failure to make them below, they are properly raised in this appeal through the incompetence of counsel claim.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

We agree with respondent that the only material question is the admissibility of the taped statements in the police interview.   If those statements were properly admitted, then any error associated with the additional testimony of District Attorney Vukasin and Sergeants Banks and Olivas concerning Gregory's other statements would be harmless, because those statements added nothing significant to the evidence Gregory provided on tape and at the preliminary hearing.   Banks and Olivas reported remarks by Gregory on the night of the interview which were consistent with her taped statement, and described her identification of appellant in a photo lineup as confirmed on the tape.   Vukasin went beyond the circumstances of the interview when she testified to Gregory's later change of heart and fear of incriminating appellant.   However, given Gregory's report of the threat against her family, and the sharp discrepancy between her testimony at the hearing and her statements on the night of the shooting, her change of heart and the likely reason for it would have been apparent to the jury even without Vukasin's testimony on those points.

Accordingly, our analysis will be confined to the evidence of Gregory's recorded statements.

(3) Admissibility of the Taped Statements

Appellant argues on the basis of the Law Revision Commission Comment to Evidence Code section 1202 (Cal. Law Revision Com., 29B, Pt. 4 West's Ann. Evid.Code (1995 ed.) § 1202, p. 27;  hereafter Comment), and People v. Cudjo (1993) 6 Cal.4th 585, 25 Cal.Rptr.2d 390, 863 P.2d 635, that Gregory's recorded statements were inadmissible for the truth of the matters stated.   He also submits, on the basis of the Comment and cases including People v. Beyea (1974) 38 Cal.App.3d 176, 113 Cal.Rptr. 254, that those statements were inadmissible to impeach Gregory.   We reject both of those arguments and conclude that the statements were admissible for their truth in the case against appellant.

 Respondent contends that Gregory's recorded statements were admissible for their truth because they were part of her former testimony at the preliminary hearing.  (Evid.Code, § 1291.)   However, this argument ignores People v. Cudjo, supra, 6 Cal.4th at p. 616, 25 Cal.Rptr.2d 390, 863 P.2d 635, which considered whether a witness's previously-recorded statements introduced at a preliminary hearing were admissible for their truth at a trial where the witness was unavailable.   In that case, “after [the witness's] taped statements were played at the preliminary hearing [he] testified that the tape had refreshed his recollection, that he had not lied to the investigators and had told them what he knew, and that he did not disagree with any of the things he had told the officers.”  (Ibid.) Thus, “[b]ecause [the witness] in this way adopted and reaffirmed the substance of his statements to the officers, the jury was entitled to consider those statements for their truth under Evidence Code section 1291 as part of [the witness's] former testimony.”   (Ibid., italics added.)   Here, Gregory did not adopt and reaffirm the substance of her previous statements but rather disavowed most all of them at the preliminary hearing.   Therefore, under the reasoning of Cudjo, those statements were not admissible for their truth under Evidence Code section 1291 as part of her former testimony.

 However, the statements were admissible for their truth under recently-enacted Evidence Code section 1294.1  This statute provides in full:  “(a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter pursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291:[¶]  (1) A videotaped statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter.  [¶] (2) A transcript, containing the statements, of the preliminary hearing or prior proceeding concerning the same criminal matter. [¶] (b) The party against whom the prior inconsistent statements are offered, at his or her option, may examine or cross-examine any person who testified at the preliminary hearing or prior proceeding as to the prior inconsistent statements of the witness.”  (Evid.Code, § 1294, italics added.)

Gregory's recorded statements were admissible under the conditions set forth in this statute.   The statements were prior inconsistent statements properly admitted at the preliminary hearing under Evidence Code section 1235 for their truth, and the transcript of the hearing “contained” those statements.   The preliminary hearing transcript confirms that the recorded statements were indeed played at the hearing.   Although the transcript of the preliminary hearing states that “the tape was played, not reported,” it is not disputed that the tape played at trial was the one played at the preliminary hearing.   It is immaterial whether Evidence Code section 1294 permitted introduction at trial of the tape itself, because the statute expressly authorized the admission of the transcript of the tape's contents which was given to the jury.

Appellant's attempts to avoid or limit the application of Evidence Code section 1294 to the statements in question are unavailing.

 Appellant contends that this statute cannot be “retroactively” applied in his case because the statute was not effective when his trial began.   The statute took effect on January 1, 1997.  (Cal. Const., art.   IV, § 8, subd. (c)(1);  Stats.1996, ch. 561, § 1, No. 8 West's Cal. Legis.   Service, p. 2599.)   Voir dire in appellant's case began on December 12, 1996, but jeopardy did not attach until the jury was sworn on January 7, 1997 (People v. Finch (1953) 258 P.2d 1124, 119 Cal.App.2d.Supp. 892, 895;  People v. Young (1929) 100 Cal.App. 18, 23, 279 P. 824), and opening statements were not made until January 8, 1997.   Thus, Evidence Code section 1294 was in effect when all of the evidence in the case was introduced.

 The admissibility of evidence is generally determined at the time the evidence is offered (People v. Mattson (1990) 50 Cal.3d 826, 850, 268 Cal.Rptr. 802, 789 P.2d 983), and there is no reason to depart from this general rule in this instance.  (Cf. Evid.Code, § 12 [Evidence Code applied to trials which commenced on or after the Code's effective date;  “trial” commenced with swearing of first witness or admission of first exhibit].)   When appellant's case was first called for trial, the court noted that because of the holidays and scheduling conflicts “the jurors will come back in here for jury selection on January the sixth.”   The parties knew that evidence would not be presented until after the first of the year, and could prepare their cases in light of the evidentiary rules that would then apply.

 Appellant argues that application of Evidence Code section 1294 to admit Gregory's taped statements would violate his Sixth Amendment right of confrontation, because he did not have an opportunity to cross-examine Gregory about those statements at trial.   This argument is based on People v. Cuevas (1995) 12 Cal.4th 252, 48 Cal.Rptr.2d 135, 906 P.2d 1290, which held that the sufficiency of an out-of-court identification to support a conviction is to be determined under the substantial evidence test (id. at p. 257, 48 Cal.Rptr.2d 135, 906 P.2d 1290).  Cuevas disapproved the prior rule that an out-of-court identification was insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.  (Ibid.) The court reasoned that the corroboration requirement was unnecessary because there were other existing safeguards that adequately ensured the reliability of such identifications.  (Id. at p. 272, 48 Cal.Rptr.2d 135, 906 P.2d 1290.)   One of the safeguards noted by the court was the availability of the identifying witness for cross-examination at trial.  (Id. at p. 272-274, 48 Cal.Rptr.2d 135, 906 P.2d 1290.)

Cuevas is distinguishable and does not support appellant's argument in any event.   There was ample corroboration of Gregory's out-of-court identification in this case, and we are not faced with any issue of substantial evidence like the one addressed in Cuevas.   In the discussion appellant cites Cuevas was addressing “an out-of-court identification that the witness does not confirm at trial” (People v. Cuevas, supra, 12 Cal.4th at p. 272, 48 Cal.Rptr.2d 135, 906 P.2d 1290), and the court was pointing out the benefits of cross-examination in that context, where the witness was presumed to be available at trial.  Cuevas does not suggest that an out-of-court identification can never be admitted into evidence consistent with the Sixth Amendment unless there is an opportunity to cross-examine the identifying witness at trial, nor does Cuevas question any of the numerous authorities which establish that an opportunity to cross-examine a witness at a preliminary hearing may be constitutionally sufficient.  (E.g., People v. Samayoa (1997) 15 Cal.4th 795, 849-852, 64 Cal.Rptr.2d 400, 938 P.2d 2;  People v. Mayfield (1997) 14 Cal.4th 668, 742, 60 Cal.Rptr.2d 1, 928 P.2d 485;  People v. Zapien (1993) 4 Cal.4th 929, 974-975, 17 Cal.Rptr.2d 122, 846 P.2d 704;  People v. Lepe (1997) 57 Cal.App.4th 977, 982-984, 67 Cal.Rptr.2d 525.)

The many cases such as those just cited which have rejected Sixth Amendment challenges to evidence admitted under the former testimony exception to the hearsay rule (Evid.Code, § 1291) apply equally to the closely-related new exception under Evidence Code section 1294.   Unlike former testimony covered by Evidence Code section 1291, the prior inconsistent statements covered by Evidence Code section 1294 may not necessarily have been made under oath, but that distinction is immaterial for purposes of the Confrontation Clause because the defendant will have had the same motive and opportunity for cross-examination in either case.   Appellant had an opportunity at the preliminary hearing to cross-examine Gregory about her taped statements, and his interest and motive to do so were similar to those he would have had if she had testified and been impeached at trial with those statements.   The Sixth Amendment was thereby satisfied.  (See California v. Green (1970) 399 U.S. 149, 165-166, 90 S.Ct. 1930, 26 L.Ed.2d 489;  People v. Cudjo, supra, 6 Cal.4th at p. 618, 25 Cal.Rptr.2d 390, 863 P.2d 635;  People v. Brock (1985) 38 Cal.3d 180, 189-190, 211 Cal.Rptr. 122, 695 P.2d 209.)   Thus, appellant's right of confrontation was not violated by the admission of the taped statements.

Appellant contends that the taped statements were inadmissible under the holding of Idaho v. Wright (1990) 497 U.S. 805, 816, 110 S.Ct. 3139, 111 L.Ed.2d 638, that to be admissible consistent with the Confrontation Clause, hearsay evidence must “ ‘fall[ ] within a firmly rooted hearsay exception,’ ” or be “supported by ‘a showing of particularized guarantees of trustworthiness.’ ”   Appellant notes that Evidence Code section 1294 is new and not a “firmly rooted” hearsay exception, and he submits that there are no “particularized guarantees of trustworthiness” for the taped statements because the record shows that Gregory must have lied to the police, the magistrate, or both.

 However, statements which have been cross-examined at a preliminary hearing are “generally immune from subsequent confrontation attack” regardless of “the inherent reliability or unreliability of [the unavailable witness] and [her] story.”  (Ohio v. Roberts (1980) 448 U.S. 56, 73, 100 S.Ct. 2531, 65 L.Ed.2d 597.)   The cross-examination itself supplies the requisite assurance of reliability.  “Since there was an adequate opportunity to cross-examine [the witness], and counsel ․ availed himself of that opportunity, the transcript ․ bore sufficient indicia of reliability and afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement.”  (Ibid. [internal quotation marks omitted].)   Therefore, there was no need for an additional “showing of trustworthiness” with respect to Gregory's taped statements.2

 Appellant contends that our interpretation of Evidence Code section 1294 violates Evidence Code section 1205, which states that:  “Nothing in this division [Evid.Code, § 1200 et seq.;  “Hearsay Evidence”] shall be construed to repeal by implication any other statute relating to hearsay evidence.”   Appellant suggests, for example, that our reading of Evidence Code section 1294 “repeals” Evidence Code section 1238 by making certain out of court identifications admissible which would not be admissible under the latter statute.   This line of argument lacks merit.   Evidence Code section 1205 is inapplicable;  it merely confirmed that enactment of the Evidence Code did not impliedly repeal statutes in other codes which provided for the admission of hearsay evidence.  (See 7 Cal. Law Revision Com. Rep. (1965) 1, 227.)   The addition of a new hearsay exception does not “repeal” any of the others in any event;  it simply expands the universe of potentially applicable exceptions.

Appellant contends that Evidence Code section 1294 was not intended to supplant the rule that prior inconsistent statements of hearsay declarants are admissible only for impeachment and not for their truth.   Evidence Code section 1202, with italics added, provides that:  “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct.”   The Comment to this section, cited with approval in People v. Cudjo, supra, 6 Cal.4th at p. 616, 25 Cal.Rptr.2d 390, 863 P.2d 635, states:  “Section 1235 provides that evidence of inconsistent statements made by a trial witness may be admitted to prove the truth of the matter stated.   No similar exception to the hearsay rule is applicable to a hearsay declarant's inconsistent statements that are admitted under Section 1202.   Hence, the hearsay rule prohibits any such statement from being used to prove the truth of the matter stated.   If the declarant is not a witness and is not subject to cross-examination upon the subject matter of his statements, there is no sufficient guarantee of the trustworthiness of the statements he has made out of court to warrant their reception as substantive evidence unless they fall within some recognized exception to the hearsay rule.”

 It is apparent from the legislative history of Evidence Code section 1294 that it was meant to be recognized as a hearsay exception which permits the introduction of “substantive evidence” for its truth.   Committee analyses of the bill that became Evidence Code section 1294 indicate that it was intended to overrule People v. Williams (1976) 16 Cal.3d 663, 128 Cal.Rptr. 888, 547 P.2d 1000.  (Assem.  Com. on Judiciary Analysis of Assem.   Bill No. 2483 (May 8, 1996) p. 1 [hereafter Assem.   Analysis];  Sen. Com. on Crim. Proc. Analysis of Assem.   Bill No. 2483 (July 9, 1996) pp. 4-6.)   In Williams, a police detective testified at a preliminary hearing to prior inconsistent statements of a witness.   At trial, the witness' preliminary hearing testimony was admitted after he was found to be unavailable, and the detective repeated his preliminary hearing testimony about the prior inconsistent statements.   The issue was whether the detective's testimony was properly admitted at trial “as substantive evidence under section 1235 of the Evidence Code.” (People v. Williams, supra, at p. 666, 128 Cal.Rptr. 888, 547 P.2d 1000.)   The court held that it was not, citing the above-quoted Comment, and reversed the judgment on that basis.  (Id. at pp. 668-670, 128 Cal.Rptr. 888, 547 P.2d 1000.)   Since the issue in Williams was whether preliminary hearing testimony could be admitted at trial for the truth of the matters stated, the Legislature's disapproval of that case indicates that Evidence Code section 1294 was intended to provide for the admission of evidence for the truth, not just impeachment.

This conclusion is reinforced by other statements in the legislative history as to purpose of the statute:

“[Evidence Code section 1294] [a]llows the statement of a person, who is unavailable as a witness, to be introduced as evidence in court if the statement was previously introduced at a hearing or trial as a prior inconsistent statement of the witness.   This bill would, for example, permit an officer to relate an informant's statement to the jury when the informant is unavailable to testify, and the informant denied making the statement at the preliminary hearing, provided that the defendant had an opportunity to cross-examine the informant at the preliminary hearing․


“Frequently, witnesses who were available at the time of the preliminary hearing of a felony case, cannot be found at the time of trial several months later.   Also, witnesses sometimes change their stories between the time they are first interviewed by a police investigator and their appearance in court.   When a witness gives a differing story at a hearing, he or she is normally confronted with the statement previously given to the officer and the officer testifies about the prior statement.   This alleged prior statement can be subjected to cross examination by the defendant's attorney.   The statement may also be considered by the trier of fact in reaching a decision on the merits of the issue.   In such situations, the reasons for the differing testimony, and the veracity of the witness are weighed in reaching a decision.”  (Assem.  Analysis, pp. 1-2, italics added.)

As respondent observes, these statements “evidence[ ] the Legislature's belief that the prosecution should not be unduly hampered when a witness who was fully impeached at the preliminary hearing ‘disappears' when it comes time for trial.   To allow such a result would encourage the intimidation of witnesses, provide a windfall to defendants to which they are not entitled, and frustrate the pursuit of justice.”   Appellant's proposed limitation on the use of testimony admitted under Evidence Code section 1294 would be inconsistent with these broad concerns.   As we read the statute, it was intended to permit prior inconsistent statements to bear on the merits of the case, and not just the veracity of the declarant, if the defendant has had an opportunity to cross-examine the declarant as to those statements.   As previously noted, appellant had such an opportunity in this case, and did in fact cross-examine Gregory at the preliminary hearing about her recorded statements.

That opportunity for cross-examination also distinguishes the authorities cited in support of appellant's remaining argument that prior inconsistent statements of a hearsay declarant can only be introduced by the party against whom the declarant's testimony is offered.   This argument is based on another statement in the Comment to Evidence Code section 1202, that “[i]f the hearsay declarant is unavailable as a witness, the party against whom the evidence is admitted should not be deprived of both his right to cross-examine and his right to impeach.”  People v. Beyea, supra, 38 Cal.App.3d at pp. 192-194, 113 Cal.Rptr. 254, for example, held that the prosecution could not impeach the former testimony of its own unavailable witnesses with their prior inconsistent hearsay statements, where those statements had not been introduced at the preliminary hearing.   The opinion in Beyea cited the above-quoted Comment, and referred repeatedly to the fact that the defendant in that situation has had no chance to cross-examine the declarant as to the inconsistent statements.  (Ibid.) In the same vein, another court has described Evidence Code section 1202 as a rule “of fairness to the party against whom the hearsay evidence was admitted without opportunity to cross-examine or impeach the unavailable hearsay declarant.”  (People v. Ross (1979) 92 Cal.App.3d 391, 406, 154 Cal.Rptr. 783 [italics added and deleted].)   Because appellant had such an opportunity in this case these authorities are inapposite.   The prosecution was entitled to introduce the taped statements.

(4) Prejudice **



The judgment is affirmed.


1.   Our conclusions that (1) Gregory made no material incriminating out-of-court statements other than those recorded at her police interview, and (2) those recorded statements were admissible for their truth, dispose of appellant's arguments that (1) Gregory's statements should have been excluded as more prejudicial than probative (Evid.Code, § 352) if they were admissible solely for impeachment, or (2) the jury should have been instructed to consider Gregory's statements, if at all, solely for impeachment.

2.   Such a showing could have been made had it been sought or required.  People v. Cuevas, supra, 12 Cal.4th at pp. 268-269, 48 Cal.Rptr.2d 135, 906 P.2d 1290, posited circumstances where an out-of-court identification would have substantial probative value.   Some of those circumstances read like a description of Gregory's taped statement:  “ ․ consider a witness who gives a videotaped statement to the police immediately after observing the commission of the crime.   The witness has known the defendant for many years, identifies the defendant as the perpetrator, and gives many details of the crime that only someone who observed the crime would likely know.”  (Id. at p. 268, 48 Cal.Rptr.2d 135, 906 P.2d 1290.)   Other circumstances in the court's hypothetical do not fit Gregory's situation;  for example, the witness in the hypothetical had lost all memory of the crime, whereas Gregory (after being threatened) denied her prior statements.   But under all of the circumstances here, Gregory's taped statements appear at least as reliable as her sworn testimony at the preliminary hearing.

FOOTNOTE.   See footnote *, ante.


POCHÉ, J. and REARDON, J., concur.

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