Reyes raises three claims of evidentiary error. He contends the trial court committed prejudicial error in (1) admitting evidence of a Snapchat story found on his cell phone, (2) excluding a hearsay declaration against penal interest made by the driver of the car, which he contends should have been admitted under Evidence Code section 1230, and (3) admitting evidence of a prior incident in which Reyes was found with firearms in his car.
We conclude Reyes's second and third contentions have merit, and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Traffic Stop
Around 6:00 p.m. on September 3, 2016, Richmond Police Officer Douglas Gault and his colleagues conducted a traffic stop of a green Infiniti. The driver was Jose Navarro. Reyes sat in the front passenger seat with a green
Charges
Reyes and Navarro were charged with receiving a large-capacity magazine ( Pen. Code, § 32310, subd. (a) ; count 2), and Reyes was charged with possession of a firearm by a felon (id ., § 29800, subd. (a)(1); count 3). It was further alleged that Reyes committed count 3 while he was released from custody on bail (id., § 12022.1).
Reyes and Navarro were tried together. The jury found Navarro guilty as charged but was unable to reach a verdict on Reyes, and the trial court declared a mistrial. Reyes was retried.
On retrial, Gault testified about the traffic stop, and his body camera video of the traffic stop was played for the jury.
Snapchat Evidence
Gault confiscated Reyes's cell phone, and Darryl Holcombe, a senior inspector with the district attorney's office, extracted data from the phone. Reyes's phone had the social media application Snapchat, which Holcombe explained allows a user to take a photograph and send it to other users to view for a short period of time and "then the photograph goes away." The application has a feature called "Snapchat Story," which allows a user to share information with the user's "friends" on Snapchat.
Prior Conduct
On March 9, 2016, Napa Police Officer Thomas Keener found Reyes with two semiautomatic .45-caliber handguns in his car. The firearms were in a tan nylon gun case on the rear passenger floorboard of Reyes's car. There were magazines in the firearms, but there was no ammunition in the magazines or in the firearms. On August 16, 2016, Reyes was convicted of possessing the firearms found in his car.
The parties stipulated Reyes was previously convicted of a felony for purposes of count 3 (possession of a firearm by a felon).
Defense
Lucy Reyes is Reyes's sister. She lived with their mother in Napa, and Reyes lived with them until he was arrested. The day of the traffic stop, Lucy and their mother picked up Reyes from work between noon and 1:00 p.m., and they all went home. Around 4:00 p.m., Lucy, Reyes, and their mother drove to Richmond, where Reyes was dropped off at his young cousin's house for a visit, and Lucy and their mother went to a nail shop.
Navarro is Reyes's cousin, but he was not the cousin Reyes was visiting, and Navarro did not live at the house where Reyes was dropped off. According to Lucy, Reyes and Navarro sometimes hung out, but "it wasn't very common." She had never seen Reyes with the orange backpack found in Navarro's car. Lucy identified the lunch pail observed on Reyes's lap as his usual lunch bag. She testified Reyes did not have any bag with him when they
Reyes did not testify. The parties stipulated that the car stopped by the police was registered to Navarro.
The jury found Reyes guilty of counts 2 (receiving a large-capacity magazine) and 3 (possession of a firearm by a felon). In a subsequent court trial, the on-bail enhancement allegation was found to be true.
The trial court sentenced Reyes to three years, four months in state prison.
DISCUSSION
We address Reyes's three claims of error in the order he raises them.
A. Admitting Snapchat Evidence
Reyes contends the trial court erred in admitting evidence of the Snapchat story found on his cell phone. We disagree.
1. Procedural Background
Before trial, defense counsel objected to admission of the Snapchat evidence, arguing it was "minimally probative" and required the jury "to make some assumptions." The prosecutor responded that the gun found in Navarro's car in this case was a Glock 17 with a 50-round drum attached, and the Snapchat story at issue included text that read, "Glock 17 with a 50 attached." The prosecutor argued evidence that Reyes received and viewed a Snapchat story with a description of a gun and magazine that matched the gun and magazine found near Reyes the very next day was probative of whether Reyes had knowledge "of the gun at his feet" in Navarro's car. Finding it had probative value, the trial court admitted evidence of the Snapchat story.
2. Analysis
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." ( Evid. Code, § 210.)
Here, Reyes's knowledge was an element of both offenses charged. The trial court instructed the jury that the prosecution was required to prove
We see no abuse of discretion in the trial court determining that evidence Reyes received and viewed a Snapchat story referring to a "Glock 17 with a 50 attached" the night before the traffic stop was relevant to Reyes's knowledge. A factfinder reasonably could infer that the Snapchat evidence made it more likely Reyes knew what the 50 round magazine was than if no such evidence had been presented.
Reyes claims the Snapchat story posted by "Meatball" was not relevant to whether he possessed the firearm and large capacity magazine the day after the story was posted and viewed. But the accompanying text and timing of the Snapchat story were enough to infer its relevance. The Snapchat
We also reject Reyes's claim that there was no evidence that he saw the posting. Holcombe testified the Snapchat story was viewed on Reyes's phone. Gault seized the phone from Reyes the next day, and Reyes has never claimed the phone was not his or that it was in someone else's possession on September 2, 2016. Under these circumstances, evidence that the Snapchat story was accessed from Reyes's phone was evidence from which it reasonably could be inferred that Reyes himself saw the story.
Reyes next asserts that there was "no nexus" showing that the photo in the Snapchat story depicted the same type of weapon that was found in Navarro's vehicle. But, as we have discussed, the text of the Snapchat story, "Glock 17 with a 50 attached," describes a firearm and magazine that match the brand of firearm and "pretty unique" magazine that Gault found in the car with Reyes the next day. The text of the Snapchat story alone provided some probative evidence of Reyes's knowledge even though the photograph originally included in the Snapchat story was no longer accessible.
B. Excluding Navarro's Hearsay Statement
Reyes contends the trial court erred in declining to admit evidence that Navarro told the police that the gun found in his car was his and that he placed it on the passenger side compartment of his car. Reyes argues this evidence was admissible under section 1230, the exception to the hearsay rule for declarations against penal interest.
Here, it is undisputed that Officer Gault executed a search warrant of Navarro's home on September 21, 2016, and that, during the search, Navarro
1. Procedural Background
In a motion in limine, Reyes sought to admit, pursuant to section 1230, evidence of Navarro's statements made to Gault during the search of his home. At a hearing on the motion, defense counsel proffered the following evidence: Navarro told Gault that the gun belonged to him; Navarro said he never claimed it because no one ever asked him if the gun was his; and he said that he put the gun on the passenger side of his car and that Reyes did not know the firearm was there.
The trial court found the proffered statements other than "that the gun belonged to him" were not admissible because they were not against Navarro's penal interest.
The prosecutor argued Navarro's statement that the gun was his was untrustworthy (and, thus, inadmissible) because Navarro was "covering for his cousin who [wa]s already facing three years state prison for a gun possession in Napa" (referring to the March 9, 2016, incident during which Reyes was found with two semiautomatic handguns in his car).
At a continued hearing on the issue, defense counsel began to argue, "The reliability test is ... whether the statement is
The court interrupted, "Oh, no, I understand that case, and ... I mean, the gun was there.... [T]hat's why I asked how many people were in the car, so it's going to be Mr. Navarro or it's going to be Mr. Reyes or both that go
Ultimately, the trial court ruled that Navarro's hearsay statement was not admissible, stating, "I find that Mr. Navarro's supposed confession here ... is not reliable, and so ... the statement it was his gun is against penal interest but [I'm] finding it not reliable."
2. Analysis
" 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' " ( People v. Grimes (2016)
We review a trial court's ruling under section 1230 for abuse of discretion. ( People v. Westerfield , supra ,
Here, the trial court determined Navarro's statement that the gun was his was a statement against penal interest. It was, in effect, a confession that he possessed the gun. But the court then characterized Navarro's statement as a "supposed confession" and found it unreliable and thus inadmissible, apparently because the court believed Navarro was motivated to confess in the hope that "only one of them[ ]" would "get in trouble." This is a plausible explanation for why Navarro would confess if he were guilty, but we do not see how these circumstances show Navarro's confession is, therefore, untrustworthy. We understand the court's reasoning that, if Navarro knew he was guilty of possessing the firearm and he believed at least one of them was going to be convicted of possession of the gun, then he might confess in order to protect Reyes. We further understand that Navarro might confess even if Reyes and he jointly possessed the gun, in the hope that only one of them (not both of them) would be held liable. On the record before us, however, we fail to see why Navarro would have confessed to a crime he did not commit to protect his cousin.
The Attorney General responds that there was no error in excluding Navarro's statements because the evidence was not relevant. He argues the evidence could not disprove that Reyes possessed the gun because more than one person may possess something at the same time. This argument is unconvincing. It is, of course, possible for more than one person to possess an item ( People v. Miranda (2011)
C. Admitting Prior Uncharged Conduct
The prosecution was permitted to present evidence that an officer found Reyes with two semiautomatic handguns in his car in Napa County in March 2016, an incident resulting in Reyes's conviction for possession of the firearms. Reyes argues this evidence should not have been admitted, and we agree.
1. Procedural Background
The prosecution sought to admit evidence of Reyes's prior gun possession to prove knowledge and lack of mistake on the day of the traffic stop. Recognizing "there are scenarios when people get into cars and they have no idea what's in the car," the prosecutor argued at a pretrial hearing that the Napa incident "is allowing the innocent explanation here to be negated by similar unlawful conduct. [¶] So they're [the jurors] going to be presented here with one [scenario] that goes to guilt and an innocent explanation which is I had no idea, and if we don't let them see his prior similar conduct, recent conduct, and his knowledge of firearms ..., then they're not getting the full picture to make an informed decision."
Defense counsel responded that she could not see how the prosecutor's argument was anything but offering the prior conduct to show propensity or to inflame the jury.
2. Analysis
"As a general rule, evidence of uncharged crimes is inadmissible to prove the defendant had the propensity or disposition to commit the charged crime. [Citations.] 'The reason for this rule is not that such evidence is never relevant; to the contrary, the evidence is excluded because it has too much probative value.' [Citations.] ' "The natural and inevitable tendency" ' is to give excessive weight to the prior conduct and either allow it to bear too strongly on the present charge, or to take the proof of it as justifying a conviction irrespective of guilt of the present charge." ( People v. Hendrix (2013)
Evidence of prior conduct is admissible, however, when relevant to demonstrate a fact other than character or propensity, "such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (§ 1101, subd. (b).)
We review for abuse of discretion a trial court's decision to admit evidence of prior conduct under section 1101, subdivision (b). ( People v. Fuiava (2012)
Reyes argues evidence of the Napa incident should not have been admitted because
Courts have recognized that a defendant's prior conduct may be relevant to knowledge, but the parties have not directed us to any cases with facts similar to those presented here, and we are not aware of any.
The Hendrix court explained: "[Hendrix] contends he did not have the requisite knowledge-the knowledge that [the person he resisted] was a police officer-because he was mistaken.... [T]o establish knowledge when that element is akin to absence of mistake, the uncharged events must ... support the inference that what [Hendrix] learned from the prior experience provided the relevant knowledge in the current offense ." ( Hendrix , supra , 214 Cal.App.4th at pp. 242-243,
Here, the relevant "knowledge" issues at trial were whether Reyes knew he possessed the firearm, knew he received the 50 round drum magazine, and knew what the magazine was. (CALCRIM Nos. 2500 and 2511.) To find such knowledge,
We have already found that the error in excluding Navarro's hearsay declaration against penal interest was not harmless. It follows that the combination of erroneously admitting evidence of the Napa incident and erroneously excluding Navarro's hearsay statement was also prejudicial.
DISPOSITION
The judgment is reversed.
We concur:
Kline, P.J.
Stewart, J.
Notes
Navarro was also charged with possession of a firearm and ammunition by a non-registered owner (Pen. Code, § 25850, subds. (a), (c)(6) ; count 1) with gang-related enhancements (id ., §§ 186.22, subd. (b)(1)(A), 12021.5, subd. (b)).
In the video, Navarro can be heard telling an officer he was "about to go play basketball." Reyes identified himself to Gault and stated his birth date. Gault asked if they were "just coming from work or something?" Reyes answered, "Yeah, about to go party."
In cross-examination, Holcombe explained the Snapchat application itself deletes photographs. He testified, "[T]he original concept behind Snapchat was so you would send a picture, the person you were sending it to would view it for a short amount of time but wouldn't be able to ... retain it in any way." Holcombe also explained that this "story" posted by the user called "Meatball" would have been seen by all of that user's "friends" on Snapchat. So it was not a direct message to Reyes.
Further undesignated statutory references are to the Evidence Code.
Section 1230 provides, "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
Defense counsel's proffer was based on Gault's testimony at the previous joint trial of Navarro and Reyes (which ended in Navarro's conviction and a mistrial for Reyes). Section 1230 requires a showing that the declarant (in this case Navarro) is "unavailable as a witness." The trial court found Navarro unavailable for purposes of section 1230 after Navarro invoked his Fifth Amendment privilege against self-incrimination during a section 402 hearing outside the presence of the jury. Navarro's unavailability as a witness is not in dispute on appeal.
The prosecutor also pointed out that, when Navarro told Gault the gun was his, Navarro was out of custody but Reyes was still in custody and "this case had not even been charged yet, so there [wa]s every reason for him to-to try to take the blame for Mr. Reyes so charges would not even be filed."
We observe that in the original joint trial of Reyes and Navarro, the same prosecutor elicited testimony from Gault on direct examination that, during the search of Navarro's house on September 21, 2016, Navarro told him, "the firearm was his," "[h]e had found it," and he was "[j]ust keeping it." (Cf. Green v. Georgia (1979)
The prosecutor argued to the jury that the Napa incident was relevant to Reyes's knowledge as follows: "Did he have knowledge of the gun here? ... [¶] Let's just review it one more time before you go on your way. His recent history. His recent history with possessing semiautomatic firearms in his car. When you are determining his knowledge, you are allowed to hear that, to hear about his knowledge in the prior case. You use that as knowledge in this case. His recent history, does it point to him not knowing about the gun? Absolutely not. Does it point to him knowing about the gun in this case? It does."