Opinion
A jury found defendant Brown guilty of the crimes of grand theft and burglary, and he admitted serving a recent prior prison term. The trial court thereafter set aside the burglary conviction. He was sentenced to state prison for a three-year aggravated term on the grand theft charge with a one-year enhancement for the prior conviction and prison term. He appeals from the judgment.
It is first contended by Brown that: “The California Constitution precludes a conviction where the only evidence connecting the accused with a crime is a prior statement repudiated by a witness at triаl.”
In stating the relevant evidence, we follow the rules laid down in
People
v.
Johnson
(1980)
The San Lorenzo Lumber Company was located on Cory Street in the City of Santa Cruz. Over the weekend of January 22-23, 1983, an electric gеnerator was stolen from the premises; it appeared to have been removed through a hole in a fence on Cory Street. The generator was predominantly red-orange and white in color, with some black. It weighed about 150 pounds and was of a value in excess of $1,000. And it had a hook or ring on its top to facilitate its transportation.
On Sunday evening, January 23, 1983, a neighbor going to his neаrby shop on Cory Street saw 2 men, about 30 or 40 feet from the lumber company’s “back gate.” Returning soon after, he observed two people carrying what appeared to be “either аn electric motor or a generator.” They were holding the ends of a pipe which went through “a hook on the top.” The men and the machine were seen very clearly in his “headlights.” The neighbor continued to observe the men as they walked down Cory Street and entered the premises of 4045-B Cory Street. The neighbor was familiar with the area, he drove down the street “everyday, at least.”
The next morning, Monday, January 24, 1983, the neighbor reported his observations to the police, and pointed out the premises at 4045-B Cory Street, that the men carrying the motor or generator had enterеd.
The 4045-B Cory Street premises were occupied by Ron Barker and his wife Domenica Barker. Defendant Steven Roger Brown was a friend of Ron Barker.
Later on the day of Monday, January 24, 1983, a police officer visited the Barkers’ home at 4045-B Cory Street, told Ms. Barker he was investigating a burglary, and asked permission to search the house. The permission was granted, and an unproductive search was made. Told that an electric generator was stolen, she said that she “knew nothing about it,” and the officer left the premises.
This time Ms. Barker was more cooperative. She told the officer that on the night of Sunday, January 23, 1983, her husband and defendant Steve Brown had carried the generator into the house and, about 10 minutes later, had carried it out again. The interview was unrecorded, but twice during the next few days recorded statements, with her permission, were made.
During the police interviews Ms. Barker was asked to describe the generator she had seen. She said it was “orangе and white,” and with her arms and hands, correctly described its approximate size. Shown a picture of the stolen generator, she said it had the colors of the one she saw and otherwise resembled it, but that she did not remember the “bars.” She also pointed to a radio within the house and said her husband, but not Steve Brown, had stolen it. She insisted “that Steve Brown had nothing to do with stealing the radio,” and that “the only thing [the police] could get Steve for was the generator. ” (Her husband, Ron Barker thereafter pleaded guilty to the radio’s theft, i.e., “petty theft with a prior petty theft,” a felony violation of Pen. Cоde, § 666.)
Defendant Brown was thereafter arrested for the burglary of the San Lorenzo Lumber Company, and the theft of its generator.
At defendant Brown’s later preliminary examination however, Ms. Barker tеstified that neither her husband, nor Brown, had brought the generator into the house, and that she had lied to the police. And at Brown’s later trial, on her cross-examination, the following question was asked, and answer given.
“Q. And, as a matter of fact, when you were called to testify, and you were sworn and under oath at the preliminary hearing, and you were asked if you ever told Deputy Wildey that you saw Steve Brown help bring a generator into your house, you said, ‘no’?
“A. That’s right. I’d been threatened. ” (Italics added.)
At defendant Brown’s trial, Ms. Barker continued in her denial that her husband and Brown had brought the generator into the house, or that she had seen it. She admitted thаt she hated her husband (then her ex-husband) for his treatment of her, but that she had no reason to be angry at Brown. And she said that her accurate description of the stolen generator was just
The prosecution was thereafter permitted to produce the evidence of Ms. Barker’s prior inconsistent statements to the police officer, and one of the recordings, as authorized in a proper case by Evidence Code section 1235. *
It was the repudiated testimony of Ms. Barker that is the subject of the instant contention.
The effect of such repudiated statements of a witness, properly admitted under Evidence Code section 1235, was broadly discussed in
People
v.
Green
(1971)
They are admissible “to prove thе truth of the matters asserted therein” (id., p. 985), and the rule “does not violate the confrontation clauses” of the state and federal Constitutions (id., passim).
Defendant Brown, insisting that Ms. Barker’s prior inconsistent statements were insufficient
as a matter of law,
to support his conviction, relies heavily upon
In re Miguel L.
(1982)
In re Miguel L. points out that requirements of due process demand a holding that, even in juvenile court cases, a finding of criminal conduct may not be “based solely [on earlier, but repudiated, declarations of an accomplice since it] not only lacks the trаditional indicia of trustworthiness, but also comes from an unreliable source” (32 Cal.3d, p. 110). And elsewhere the high court emphasized that its holding was founded upon the truism “ ‘that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source’ ” (id., p. 108), lacking any indicia of trustworthiness (id., passim).
And in the case at hand we, as did the trial court and jury, observe many indicia of trustworthiness of Ms. Barker’s earliеr declarations to the police.
While Ms. Barker obviously had a deep hatred for her husband, just as obviously (and concededly) she had none for defendant Brown. Indeed, as to the stolen radiо, she took care to point out that Brown was in no way incriminated with it. Her detailed and accurate description of the stolen generator, and her corroborated statement as to when and how it had been brought into her home, added greatly to her then credibility. So also was her prior inconsistent statements’ credibility enhanced by the obviously unintended trial exclamation, “I’d been threatened,” when asked about one of her earlier repudiated accusations of Brown’s complicity in the generator theft. (No contention is made that the threat was from the police or prosecution.)
Moreover the trial jury had an opportunity to compare Ms. Barker’s voice-recorded statement of Brown’s guilt, with her trial testimony that she had “not really” seen the gеnerator, and that her remarkably accurate description of it to the police, was just a “wild stab.”
Concluding that the trial court properly applied Evidence Code section 1235 and thе rule of
People
v.
Green, supra,
The remaining contention of Brown’s appeal is that: “Appellant was improperly sentenced to the aggravated term.”
The contention is unsupported by authority. We observe however, that Brown had previously been separately convicted of the crimes of burglary and of receiving stolen property. And we are unpersuaded that the trial court’s “diatribe” against appellate courts (which we do not find on the record) somehow taints Brown’s sentencing.
The instant contention also, is found invalid.
Racanelli, P. J., and Holmdahl, J., concurred.
Notes
Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”
Evidence Code section 770 allows such testimony when: “(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement. ”