Voicemail Admissibility — Victim’s Voicemail to Girlfriend Prior to Attack Relevant to His State of Mind & Issue of Who Was the Aggressor, Thus Not Hearsay

People v. Martinez, 2016 Cal. App. Unpub. LEXIS 927 (Cal. Ct. App. Feb. 8, 2016):

A jury convicted defendant Roberto Jaime Martinez of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a concealed dirk or dagger (former § 12020, subd. (a)(4)). As to the murder, the jury found true allegations that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced defendant to a prison term of 26 years to life.

On appeal, defendant contends: (1) his trial counsel was ineffective for failing to argue for suppression of defendant's confession on the ground that defendant invoked his right to remain silent during the interrogation and on the ground that the interrogation tactics rendered the confession involuntary; (2) the jury instructions on murder failed to define second degree murder; (3) the jury instructions on murder did not require the prosecution to prove the absence of heat of passion, provocation, and imperfect self-defense; (4) the prosecution's gang expert improperly relied [*2]  on testimonial hearsay; (5) there was insufficient evidence to support the jury's finding regarding the "primary activities" element of the gang enhancement (§ 186.22, subd. (f)); (6) the trial court erred by admitting a voicemail message the victim left for his girlfriend on the night of the murder; (7) the trial court erred by allowing a witness to testify about hearsay statements by unidentified declarants; and (8) the cumulative impact of the errors violated defendant's federal due process rights. For reasons that we will explain, we will affirm the judgment.

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II. BACKGROUND

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A. The Diaz Stabbing

On October 23, 2011, at 1:02 a.m., Luis Diaz left a voicemail message for his girlfriend, stating, "Yea I texted you. . . . . . you text me but I guess it's cool. . . you don't know what I'm going through. . . you think you do. . . I'm about to get jumped tonight and I don't want you to. . .inaudible. . .have you know what I'm thinking you don't even care about me. . . .care about what you're doing right [*3]  now. . .I'll see you whenever I do or whenever you want to see me alright bye. . . . . ."

At approximately 1:39 a.m. that same day, residents of West Virginia Street in San Jose called 9-1-1 after noticing someone who needed help out on the street.

San Jose Police Officer Peter Szemeredi had been dispatched to a report of a possible gang fight involving 10 people in the area of Union Street and Almaden at about 1:30 a.m. While on his way to that area, he was notified that someone needed help on West Virginia Street between Almaden and Vine, so he responded to that location instead. Officer Szemeredi found Diaz lying face down and bleeding, and he determined that Diaz had been stabbed in the abdomen.

Diaz was taken to Valley Medical Center, where he passed away at 2:29 a.m. An autopsy indicated that the stab wound to Diaz's abdomen was over six inches deep. When the stab wound was inflicted, "the entire knife blade had entered the body." The knife had gone through Diaz's liver, gallbladder, kidney, pancreas, and small bowel, and it had pierced both a major vein and the aorta. In addition to the stab wound, Diaz had 21 blunt force trauma injuries. Those injuries were to his temple, neck, [*4]  knee, torso, hip, arms, hands, and wrist. The blunt force trauma injuries included both abrasions and bruises. The injuries would not have occurred from Diaz falling down.

Diaz's blood alcohol level was 0.19 percent at the time of his death. Diaz had tattoos that are common to Northerner gang members and a Mongolian hairstyle, which is common to Northerner gang members.

Lilia Mendoza Naranjo was living at a residence on Union Street on October 23, 2011. The residence had "[a] lot of people coming in and out," some of who were Sureño gang members. At some point after midnight, a person Mendoza Naranjo knew as "Droopy" entered the residence. He appeared nervous. Shortly afterwards, defendant, who Mendoza Naranjo knew as "Espantos," entered, holding a knife. The knife had blood on it. Defendant said something like, "I fucked up." He went to the kitchen sink and looked for something to clean the knife with.

Mendoza Naranjo heard Droopy comment, "Shit went down." Other people also came into the residence at about the time Droopy and defendant entered. These people appeared agitated. Mendoza Naranjo heard these people say that "something had happened." According to Mendoza Naranjo, these people [*5]  said "that they had beat up somebody."

Later that morning, the police detained everyone who was in the Union Street residence, including defendant. Defendant had a shaved head and tattoos on his head: one read "West Side." Defendant told the police that "he had not seen or heard anything in relation to the incident."

On November 9, 2011, an anonymous person told police that Mendoza Naranjo might have information about the Diaz stabbing. Mendoza Naranjo was contacted and identified defendant.

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F. Voicemail Message

Defendant contends the trial court erred by admitting the voicemail message Diaz left for his girlfriend on the night of the murder, in which Diaz stated, "I'm about to get jumped tonight." Defendant contends the voicemail message was not relevant (Evid. Code, § 210) and that even if the voicemail message was admissible, it should have been excluded under Evidence Code section 352. Defendant also contends the admission of the voicemail message into evidence violated his right to due process under the Fourteenth Amendment.

1. Proceedings Below

Defendant filed a motion in limine to exclude Diaz's voicemail message. Defendant argued that the voicemail message was hearsay and that the voicemail message should be excluded as more prejudicial than probative (Evid. Code, § 352) because hearing "a voice from the grave" would "invite the jury to overly sympathize with the manner in which [Diaz] died." Finally, defendant argued that admitting the voicemail message would violate his state and federal constitutional rights to confrontation and due process.

The prosecutor argued that the voicemail message showed Diaz's state of mind, specifically [*64]  the "stress of the event or what was happening . . . moments before he was attacked and ultimately killed." In response, defendant's trial counsel argued that Diaz's state of mind was not relevant. He argued that the issues the jury had to determine depended on defendant's state of mind only.

The trial court found that Diaz's state of mind was relevant because defendant had brought up Diaz's conduct in his statement to the police. The trial court thus found that the voicemail message was admissible to prove Diaz's state of mind under Evidence Code section 1250, subdivision (a)(2).8

8   Evidence Code section 1250, subdivision (a)(2) permits introduction of "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation" if it was made under circumstances such as to indicate its trustworthiness (Evid. Code, § 1252) and if "[t]he evidence is offered to prove or explain acts or conduct of the declarant" (id., subd. (a)(2)).

2. Analysis

"We review a trial court's rulings on the admission and exclusion of evidence for abuse of discretion. [Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1291.) The trial court's discretion is broad, particularly "'where, as here, underlying that determination are questions of relevancy, the state of mind exception to the hearsay rule, and undue prejudice. [Citation.]'" (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103 (Escobar [*65] ).)

In Escobar, the defendant was charged with murdering his wife after he shot her in the garage of their home. The defendant claimed that on the night of the shooting, his wife had kicked him, insulted him, and told him she had slept with another man in his bed. (Escobar, supra, 82 Cal.App.4th at p. 1092.) A rebuttal witness testified that about three weeks before the shooting, the wife had expressed fear that the defendant would kill her if she left him. (Ibid.) On appeal, the defendant challenged the admission of the evidence of his wife's statements, but the court held that her statements were admissible under Evidence Code section 1250 to impeach the defendant's claims about his wife's state of mind. (Id. at p. 1103.) Since the defendant had testified that his wife had "fearlessly challenged him in the garage, kicked him in the testicles, and insulted him in a very provocative way," and because that testimony was presented "in support of a theory that the killing amounted to no more than voluntary manslaughter," the defendant had placed his wife's state of mind in issue. (Ibid.)

Here, defendant similarly placed Diaz's state of mind in issue. During his police interview, defendant claimed that Diaz "ran straight" towards defendant, "like he wanted to attack," [*66]  before defendant stabbed him. This statement provided the basis for the defense theories of self-defense and imperfect self-defense. During arguments to the jury, defendant's trial counsel asserted that defendant had committed a "lawful killing in self-defense" because he reasonably believed that Diaz was threatening to kill him or inflict great bodily injury. Because the defense claimed that Diaz appeared to be attacking him, the prosecution was entitled to introduce evidence of Diaz's state of mind to impeach that claim. (See Escobar, supra, 82 Cal.App.4th at p. 1103.) The trial court did not abuse its discretion by finding the voicemail message relevant (Evid. Code, § 210) and admissible under Evidence Code section 1250.

Defendant points out that Diaz's voicemail message was left at 1:02 a.m., but that the 9-1-1 call reporting an incident on West Virginia Street was not made until about 1:39 a.m. However, a statement may be admissible to show state of mind under Evidence Code section 1250 even if it is not contemporaneous with the criminal offense. (See Escobar, supra, 82 Cal.App.4th at p. 1092 [statements made three weeks prior to shooting were admissible to show victim's state of mind].)

We further conclude the trial court did not abuse its discretion by finding that the probative value of Diaz's voicemail message was not "substantially [*67]  outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) As explained above, the voicemail message was probative of Diaz's state of mind, which defendant placed at issue in claiming self-defense and unreasonable self-defense. The voicemail message was brief. Diaz did not name defendant as his assailant in the voicemail message or provide any other details that posed the potential for causing undue prejudice--that is, the voicemail message did not tend to "'evoke an emotional bias against the defendant as an individual.'" (See People v. Karis (1988) 46 Cal.3d 612, 638.)

In sum, the trial court did not abuse its discretion by admitting Diaz's voicemail message into evidence.

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