THE PEOPLE v. FREDERICK DEMETRIUS HUNT (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Appellant Frederick Hunt appeals from his conviction for burglary and two counts of receipt of stolen property.   He raises three issues:  1) evidence of his prior robbery conviction should have been sanitized before being presented to the jury;  2) his prior conviction should have been stricken under Penal Code section 1385 during the sentencing phase;  and 3) he should have been able to introduce as defense evidence during trial the portion of his interview with police officers concerning his motive for participating in the offenses.   For reasons below, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2010, a residence on Nottingham Lane was broken into and several valuable items stolen, including jewelry and a watch.   When the victims returned home, they found a blue cell phone in the guest bed.   When activated, the cell phone's home screen displayed, “The Hunt Family.”   No other physical evidence collected at the scene was viable in proving or disproving appellant's presence there.

In March 2010, a residence on Ashe Road was broken into and several valuable items stolen, including a snowboard, a custom guitar, and guitar pedals.   No other physical evidence collected at the scene was viable in proving or disproving appellant's presence there.

Employees of various pawn and jewelry shops testified at trial to transactions they had with appellant where he sold them items that came from the two burglaries.   Appellant's fingerprints matched the fingerprints on relevant sales slips at the various pawn shops.

The pawn shop transactions were traced back to appellant and he agreed to a search of his residence, where further items from the two burglaries were found.   Detective John Jamison arrested and interviewed appellant.

During the interview, appellant initially denied involvement, but when confronted with the evidence of the pawn shop transactions, appellant began explaining that he had bought one watch at a yard sale, had owned another watch “for years,” had received the guitar pedals from his brother Lawrence, whom he could not contact, and that he was holding the snowboard for a friend he refused to identify.   When confronted with the fact a cell phone was found at the Nottingham Lane burglary, he paused, then told the detectives about another individual who committed the burglaries, named “K.J.” He asserted he was riding in a car with K.J. when K.J. burgled both residences, and that K.J. had given him various items from those residences, though he had not participated in the burglaries himself.   Appellant admitted the cell phone found at the Nottingham Lane residence belonged to him, but that he had loaned the phone to K.J. before going to that home.

Toward the end of the interview, the detective asked about appellant's motive for his participation in the burglaries.   Appellant stated it was to obtain money to help feed his daughter.

Appellant was charged with two counts of burglary and two counts of receipt of stolen property.

During hearings on motions in limine, among other motions, defense counsel raised two issues, which are re-raised on appeal.   First, defense counsel requested that reference to appellant's 2005 second degree robbery conviction be excluded as unduly prejudicial due to robbery's similarity to burglary and the potential for jurors to misuse the prior conviction as propensity evidence.   Defense counsel also requested that if the court were to allow the prior conviction in, then it should be sanitized as a reference solely to a crime of moral turpitude involving dishonesty.   The trial court analyzed defense's motion under an Evidence Code section 352 ¹ balancing test and denied defense counsel's request on grounds that the probative value outweighed the prejudicial effect.   The court acknowledged the prejudicial nature of the prior conviction, but found the probative value substantially outweighed the prejudicial effect and the robbery was not so similar to the burglaries under the particular circumstances as to run afoul of the section 352 balancing test.

Second, defense counsel objected to the prosecution's request that appellant's statements to the detective regarding his motive for participating in the offenses be excluded.   The trial court reserved ruling on the issue to allow defense counsel time to research further into the issue and present an argument the following day.   Defense counsel returned without further authority and submitted on the language of section 356.   The trial court granted the prosecution's motion to exclude appellant's statements about his motive.

At trial, appellant testified, contrary to the statements he had given police, that he had received some of the stolen items from another brother, Robert, and other items from K.J. He also testified, again contrary to what he had told police, that he had let his brother Robert borrow his cell phone, not K.J. Finally, he also testified he had not accompanied K.J. to any residence.   Furthermore, appellant's sister-in-law testified on his behalf, stating that she remembered him at her home sometime during the end of January and that he often would meet his brother Robert there.   On one occasion, the exact date she could not pinpoint, she recalled appellant went out with Robert and returned without his cell phone.

The jury found appellant guilty of one count of burglary—pertaining to the residence where his cell phone was left—and both counts of receipt of stolen property.   The jury deadlocked on the second burglary count and the court declared a mistrial as to that charge.

At sentencing, defense counsel argued for the trial court to strike appellant's prior robbery conviction under Penal Code section 1385.   The trial court acknowledged its discretionary authority to do so, but reasoned that the circumstances of the offense, namely that appellant committed the new offenses while on parole for his prior offense, demonstrated his lack of rehabilitation and appellant had not otherwise established himself outside the scheme of the Three Strikes law.

The trial court sentenced appellant to the midterm sentence for the burglary, plus the five-year enhancement for his prior robbery conviction.   The court stayed the sentence for receipt of stolen property from the same residence as the burglary conviction, pursuant to Penal Code section 654.   The court also imposed a sentence of one-third the middle term for the other conviction for receipt of stolen property from the second residence, to run consecutive to the burglary conviction term, for a total term of 14 years, four months.

DISCUSSION

I. APPELLANT'S PRIOR ROBBERY CONVICTION

A. Inclusion During Trial

In addition to defense counsel's in limine motion to exclude evidence of appellant's prior robbery conviction, during trial and just prior to appellant's taking the stand, defense counsel asked the trial court to reweigh its decision to allow the prior conviction in unsanitized.   The trial court, finding nothing new in defense counsel's argument, declined to reweigh its previous ruling.   Appellant then testified at trial he had been convicted of robbery previously in 2005.

Appellant asserts the trial court erred in allowing introduction of appellant's unsanitized prior robbery conviction.   We disagree.

California Constitution article I, section 28, subdivision (f) “authorizes [for impeachment purposes] the use of any felony conviction which necessarily involves moral turpitude,” (People v. Castro (1985) 38 Cal.3d 301, 306 (Castro )), subject to the trial court's exercise of discretion under section 352.  (Castro, supra, at p. 306.)   Appellant concedes, and we agree, that robbery is a crime involving moral turpitude.  (See People v. Gray (2007) 158 Cal.App.4th 635, 641.)   Prior convictions may be included as impeachment evidence even where the underlying offenses are similar or identical to the offense at issue.  (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.)  “ ‘No ․ defendant who elects to testify in his own behalf is entitled to a false aura of veracity.’  [Citation.]”  (Ibid.)

“When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area.  [Citations.]”  (People v. Wheeler (1992) 4 Cal.4th 284, 296.)   Such factors include, “(1) whether the prior conviction reflects on honesty and integrity;  (2) whether it is near or remote in time;  (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial;  and, (4) finally, what effect admission would have on the defendant's decision to testify.”  (Castro, supra, 38 Cal.3d at p. 307.)

“A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].”  (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)

Appellant asserts the similarity between robbery and burglary was so prejudicial that it outweighed the probative value of the prior conviction as impeachment evidence.   Appellant contends the trial court should have sanitized the prior conviction to eliminate the prejudicial potential of having the jurors compare a robbery to a burglary and conclude appellant committed the burglary because he committed the earlier robbery.   He suggests a different outcome would have resulted had the jurors heard only that appellant had a prior conviction for a generic crime of moral turpitude involving dishonesty, and cites to the fact the jury hung on the second burglary count as supporting evidence of this potential change in outcome.

In making its ruling on inclusion of the prior conviction as impeachment evidence, the trial court acknowledged that evidence of the prior conviction would be prejudicial.   The court concluded, however, that, “considering all the circumstances, including the circumstances that this is not the same crime, I don't believe it is so similar as to run afoul of the [section] 352 balancing test.”   The court continued, noting this was the only prior felony conviction admissible, and that the court intended (and did) instruct the jurors regarding the limited purpose for which they may consider a prior felony conviction.   The court properly exercised its discretion in denying appellant's motion to exclude the prior conviction.

Moreover, the decision to refuse to sanitize the conviction was also proper.   “There is no automatic limitation on the ․ nature of prior convictions of crimes involving moral turpitude that may be used to impeach a witness.   [Citations.]”  (People v. Johnson (1991) 233 Cal.App.3d 425, 459.)   Appellant testified at trial to a drastically different set of circumstances than what he had initially told police.   The detective testified that appellant's admission of his involvement was the key piece of evidence linking him to the burglaries.   The trial court could properly conclude that admission of appellant's unsanitized prior conviction “was necessary to inform the jury fully as to defendant's credibility.”  (Ibid.)

The court clearly understood its discretionary authority and exercised it in a reasonable manner.   The decision to include the unsanitized robbery conviction was not arbitrary, capricious, nor patently absurd, and resulted in no miscarriage of justice.   We find no abuse of discretion.

B. Inclusion at Sentencing

At sentencing, appellant invited the trial court to strike his prior robbery conviction so that he would not be subject to the Three Strikes law.   The trial court declined.

Appellant asserts the trial court abused its discretion in declining to strike his prior conviction because he argues he falls outside the Three Strikes scheme.   Appellant contends that because he has only one prior robbery conviction, he is not the type of “career criminal” the Three Strikes Law targets.   He asserts that “any reasonable judge would have been motivated to dismiss the one and only prior conviction appellant has ever suffered in furtherance of justice pursuant to [Penal Code] section 1385.”   We disagree.

A trial court's discretion to strike prior felony conviction allegations is limited to those instances “in furtherance of justice.”  (Pen.Code, § 1385, subd. (a);  People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 530.)   Exercise of such discretion is subject to review for abuse.  (Romero, supra, at p. 530.)   A court's refusal to strike a prior conviction allegation is also subject to review under the deferential abuse of discretion standard.   (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony ).)  “[A] trial court does not abuse its discretion unless its [sentencing] decision is so irrational or arbitrary that no reasonable person could agree with it.”   (Id. at p. 377.)

Furthermore, the Three Strikes law “creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.”  (Carmony, supra, 33 Cal.4th at p. 378.)   Thus, a court abuses its discretion in failing to strike a prior felony conviction allegation in only limited circumstances, such as when it was not aware of its discretion to dismiss, considered impermissible factors in declining to dismiss, or failed to correct an arbitrary, capricious or patently absurd result of application of the Three Strikes law under the specific facts of a particular case.   (Ibid.)

In considering a defendant's invitation to strike a prior felony conviction allegation, both the trial court and the reviewing court, “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part.”  (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams ).)

The purpose of the Three Strikes law is expressly set forth within its provisions:  “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b);  see People v. Strong (2001) 87 Cal.App.4th 328, 337 (Strong ).)   Accordingly, “extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.”  (Strong, supra, at p. 338.)  “[T]he circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.”  (Carmony, supra, 33 Cal.4th at p. 378.)   We fail to find such extraordinary circumstances here.

Appellant essentially contends the trial court was unreasonable in its consideration of appellant's background, character, and prospects.  (See Williams, supra, 17 Cal.4th at p. 161.)   Appellant asserts that his short criminal history, the lack of violence involved in the instant offenses, and appellant's substance abuse, limited education, and mental health issues all weigh in favor of dismissing the prior conviction, and the trial court was “irrational and arbitrary” in declining to dismiss the prior conviction.   We disagree.

The record before us demonstrates the court clearly understood its discretionary authority and weighed the competing facts to reach a reasonable conclusion in conformity with the spirit of the law.   The court at the outset of its ruling stated its discretionary authority standard, and then continued on to note that appellant committed the current offenses less than two years after he was paroled.   Finding that appellant had not rehabilitated himself and the prior strike was recent in time, the court concluded appellant had failed to establish he should be deemed outside the spirit of the Three Strikes law scheme.  “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.”  (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

II. APPELLANT'S STATEMENTS ABOUT HIS MOTIVE TO THE POLICE

Appellant asserts the trial court erred in granting the prosecution's motion to exclude statements he made to Detective Jamison regarding his motive for his involvement in the crimes.   At hearings on the motions in limine, Detective Jamison testified that appellant, at the end of the police interview, told him that his involvement in the crimes stemmed from his need to get money to feed his daughter.   While it is unclear on what grounds the prosecution requested the statements to be excluded,² defense counsel argued the statements should be allowed under section 356.   The trial court found the statements inadmissible under section 356.

1. The Trial Court's Section 356 Ruling

Section 356 states in pertinent part, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party ․ when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”

Section 356 is meant to embody the “rule of completeness.”  (See People v. Vines (2011) 51 Cal.4th 830, 861.)  “The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.”  (People v. Arias (1996) 13 Cal.4th 92, 156 (Arias ).)   Although it is true “[i]n applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry,” (People v. Hamilton (1989) 48 Cal.3d 1142, 1174 (Hamilton )), it must nevertheless appear that the other statements sought to be introduced are from “the same interview or conversation” and “ ‘have some bearing upon, or connection with, the admission ․ in evidence.’ ”  (Arias, supra, at p. 156.)   Explaining further the second requirement, the First District has commented, “[b]y its terms section 356 allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to make the already introduced conversation understood.   Thus it has been held:  the court must exclude such additional evidence if not relevant to the conversation already in evidence.  [Citations.]”  (People v. Gambos (1970) 5 Cal.App.3d 187, 192–193, italics omitted (Gambos );  see also People v. Breaux (1991) 1 Cal.4th 281, 302.)

Appellant contends the statement was relevant because it was made on the same occasion and “amplified as well as clarified his asserted involvement by providing a motive.”   He further asserts his statement “tended to show what he actually said to the detective and presented the whole, complete conversation,” which “thus met” the section 356 relevancy requirements.   To the extent appellant is asserting relevance based on mere presence in the conversation, appellant is mistaken.   The cases explaining the section 356 test for admission of the remainder of a conversation are clear;  the statements must constitute part of a single conversation or correspondence, and the entitlement to other statements of that same conversation or correspondence must have some bearing upon, or connection with, the admission or declaration already in evidence.  (See Hamilton, supra, 48 Cal.3d at p. 1174;  Arias, supra, 13 Cal.4 th at p. 156.)   Appellant's position would conflate the two requirements and render the entirety of every conversation and correspondence discussed at a trial to be available to the adverse party as a matter of law.   We decline to find such a result here.  (See Gambos, supra, 5 Cal.App.3d at p. 193.)   To the extent appellant asserts his motive statements clarified his statements regarding the details of his involvement in the crimes, we are not persuaded.

During trial, neither appellant nor his counsel mentioned appellant's motives.   Detective Jamison testified about his interview with appellant.   He began the interview with appellant by telling him he was investigating two residential burglaries and gave a brief synopsis of each.   He and appellant then discussed various pieces of stolen property found either in appellant's possession through the search of his home, or from pawn shops and jewelry shops.   As noted above, appellant initially provided non-criminal excuses why those specific items were in his possession.

Detective Jamison then pointed out that appellant's cell phone was found at the Nottingham Lane residence.   Appellant responded by mentioning an acquaintance, “K.J.,” for the first time, and detailing how they were planning on committing residential burglaries together.   Those plans, however, had devolved into two separate burglaries where K.J. went into the residences—ostensibly as a friend or acquaintance of the inhabitants—and removed items from those residences, a few of which he gave to appellant.   Appellant also told Detective Jamison he loaned his cell phone to K.J. prior to the Nottingham Lane burglary.

The inference the jury could reasonably have drawn from Detective Jamison's statements about what appellant told him during the police interview was that appellant was involved with the burglaries.   He admitted to Detective Jamison he received various items from K.J. and sold them at various pawn shops and jewelry stores or kept them in his possession.   He admitted to Detective Jamison he was outside the residences while K.J. performed the burglaries.   When appellant testified at trial, he stated certain portions of his interview with Detective Jamison were lies and certain portions were not.

The motive statement, if admitted, would have reinforced any inference by the jury that appellant was involved with the burglaries.   As respondent points out, appellant's statements would have been further support that appellant was involved with the burglaries since he was admitting that he had a motive for his involvement.   At the section 402 hearing (hereafter 402 hearing), Detective Jamison described appellant's statement:  “at the end of the investigation [appellant] said that he committed the burglaries in order to obtain money to help feed his daughter.”   Defense counsel clarified the context of that statement, asking Detective Jamison, “And when [appellant] made that statement, that was a statement made by Mr. Hunt during your questioning of him with regards to his involvement in those burglaries.   Is that correct?”   Detective Jamison responded, “It was at the same time frame, yes.”   Appellant's statement, as testified to by Detective Jamison, would have pointed out that appellant admitted to Detective Jamison he was involved in the burglaries.

There was nothing misleading about the statements appellant made to Detective Jamison to which Detective Jamison testified at trial in front of the jury.   The statements the court excluded regarding appellant's motives would have failed to clarify the details of appellant's involvement in the crimes or provide a defense to his commission of the offenses.   The motive statements were unnecessary to the jury's understanding of appellant's statements to Detective Jamison with respect to his involvement in the crimes.  (See Arias, supra, 13 Cal.4th at p. 156.)

Appellant further asserts his statements about his motive for his involvement in the burglaries were generally relevant, in addition to being connected to the subject of Detective Jamison's statements.   While it is somewhat unclear, it appears appellant is arguing his statements should have been allowed in as, essentially, independent character evidence to bolster his credibility.   That issue was never raised at trial as defense counsel made no attempt to introduce appellant's statements under any other theory.

Appellant asserts the difference his motive statements would have made on the jury's impression of his credibility made the difference in the verdicts.   Even assuming the statements should have been admitted as independently relevant evidence, there is little reason to believe the jurors would have believed appellant's statements about his motive.   His credibility was already, as he admits in his briefing, in shambles.   He had provided one story to the police and another one on the witness stand.   His sister-in-law came forward as a defense witness the Monday before the trial began and testified that she saw appellant go out with his brother and return back without his phone.   Appellant then testified, contrary to the statements he had provided the police, that he had loaned his phone to his brother Robert and received items from him.   The jury determined that appellant and his sister-in-law were not telling the truth, as indicated by the guilty verdict on the burglary for which appellant's sister-in-law provided a defense.

Had the jury heard Detective Jamison testify about appellant's motive, they could have reasonably inferred that appellant in fact admitted he committed the burglaries.   If anything, as respondent points out, appellant's statements were more inculpatory than exculpatory.   If they would have boosted appellant's credibility, as appellant contends the statements would have, then the jury would have believed that appellant committed the burglaries, albeit to feed his daughter.  (See People v. Alvarez (2002) 27 Cal.4th 1161, 1174 [“There is no doubt that an incriminatory statement by the accused himself is relevant evidence, i.e., evidence having a ‘tendency in reason’ to prove the disputed facts, bearing on his guilt, to which the statement relates.  [Citations.]  Indeed, the accused's own disclosure of his criminal acts, purposes, or motives is so inherently and logically persuasive on those issues ․”].)  It is not reasonably likely the jury would have found a more favorable outcome had they been presented evidence of his statements essentially confessing to committing the crimes, even if the motivation was for a more compassionate reason than pure greed.   Even assuming it was error to omit the motive portion of appellant's statement and restrict cross-examination, the error was harmless under any standard.  (See People v. Lewis (2008) 43 Cal.4th 415, 460.)

2. Constitutional Claims

Appellant raises, for the first time on appeal, claims of violations of his Sixth and Fourteenth Amendment rights to confrontation and due process, respectively.   We note that appellant forfeited his constitutional error claims by failing to assert them below, “except to the extent that the constitutional claim relies on the same facts and legal standards the trial court itself was asked to apply.”  (People v. Ervine (2009) 47 Cal.4th 745, 783.)   Appellant contends he preserved his constitutional claims by virtue of asserting a section 356 objection at the trial below because implicit, if not explicit, in the 356 objection was a claim of due process and fundamental unfairness.   This is insufficient.  “We have long held that the proponent of evidence must identify the specific ground of admissibility at trial or forfeit that basis of admissibility on appeal.  [Citations.]”  (Ibid.)

Appellant preemptively asserts an ineffective assistance of counsel claim in the event that we find, as we have, that his constitutional claims have been forfeited.  “We apply settled standards:  ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.   [Citations.]  A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.   Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.  [Citations.]  If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.  [Citation.]’  [Citation.]”  (People v. Gamache (2010) 48 Cal.4th 347, 391.)

As discussed, ante, we find no prejudice resulting from the exclusion of appellant's motive statements and thus appellant fails to make an adequate showing of inadequate assistance of counsel.

DISPOSITION

The judgment is affirmed.

Franson, J.

WE CONCUR:

Cornell, Acting P.J.

Detjen, J.

FOOTNOTES

FN1. All further statutory references are to the Evidence Code unless noted otherwise..  FN1. All further statutory references are to the Evidence Code unless noted otherwise.

FN2. In its motions in limine, the prosecution requested to exclude the motive statements, and explained, “if the People bring in a portion of the defendant's inculpatory statements and then the defense seeks to bring in the exculpatory portion under the rule of completeness, the defendant has now become a ‘witness' and his credibility is at issue just like every other witness.”   The prosecution went on to note, somewhat disconnectedly, that a defendant's prior felony convictions are admissible as impeachment evidence when defendant fails to testify at trial and out of court exculpatory statements are introduced, but that the prosecution has no right to introduce an exculpatory statement by the defendant “that is otherwise irrelevant for the purpose of impeaching it.”   It would appear the prosecution's motion was grounded in the contention the motive statements were not relevant under section 356.   The trial court appears to agree with this premise in its ruling..  FN2. In its motions in limine, the prosecution requested to exclude the motive statements, and explained, “if the People bring in a portion of the defendant's inculpatory statements and then the defense seeks to bring in the exculpatory portion under the rule of completeness, the defendant has now become a ‘witness' and his credibility is at issue just like every other witness.”   The prosecution went on to note, somewhat disconnectedly, that a defendant's prior felony convictions are admissible as impeachment evidence when defendant fails to testify at trial and out of court exculpatory statements are introduced, but that the prosecution has no right to introduce an exculpatory statement by the defendant “that is otherwise irrelevant for the purpose of impeaching it.”   It would appear the prosecution's motion was grounded in the contention the motive statements were not relevant under section 356.   The trial court appears to agree with this premise in its ruling.