People v. Dixon

On August 16, 2002, Dixon and his longtime friend, Wallace, walked into the Bank of the West carrying what appeared to be guns and Burger King bags, and wearing nylons as masks and distinctive hats. (Wallace had on a white or yellow construction hard hat and Dixon a white or light-colored floppy-type hat.) Wallace was wearing a white T-shirt. Dixon had on a long-sleeved, distinctive plaid Pendleton-style shirt—although the witnesses disagreed on the exact color. Wallace approached one of the tellers and demanded that she put all her money into the Burger King bag. Dixon approached a second teller and told her to put her money into the bag. A third teller came to assist because the second did not have access to a money drawer and placed money from her drawer into the bag. The two men then went to a fourth teller and ordered her to put her money into the bag. Each time, one or both of the men exhibited guns. There was evidence that the guns were BB guns or pellet guns and not real firearms. The men then left the bank, taking with them $17,595.49.

The tellers, a bank customer, and two employees of a nearby Burger King testified at trial that Dixon and Wallace generally met the descriptions of the robbers. None of the witnesses could make a positive identification of the men for police, although one teller identified Dixon at trial.

Due to the fact that Wallace suddenly had a lot of money, his mother suspected that he and Dixon were involved in the robberies and called police. She was asked to view the videotapes and still photographs of the bank robbers and positively identified both Wallace and Dixon as the robbers. At trial, she said she could not be sure it was Dixon in the photos, but admitted she had been certain when she made the identification for police. The police then set up a surveillance team to watch Wallace and his apartment. They saw Dixon go to the apartment and leave with Wallace on September 11, the same day they had a tip that the two were planning another robbery. Wallace and Dixon were arrested when they left the apartment together.

Upon searching Wallace’s apartment, the police found a white hard hat, clothing consistent with that worn by the robber identified as Wallace, and receipts and other papers dated August 16, 2002, involving the purchase of a car ($2,000) and a television. Wallace’s mother testified that there were other unusual purchases made by Wallace shortly after the robbery.

Upon searching Dixon’s mother’s house, where he lived much of the time, police found a floppy hat that generally fit the description of the one worn in

Wallace told police the money he used to buy his car came from his mother; however, she denied giving the money to her son. Dixon said he got the $4,900 from people who owed him money. While the men were incarcerated, Dixon sent his private investigator to obtain a declaration from Wallace. The declaration stated that Wallace was “personally involved in the robbery for which Mr. Dixon is currently charged.” The declaration also claimed that Dixon was not involved in the robbery, but had received money from Wallace as a result of “personal business.”

None of the money recovered could be traced directly to the robbery. The guns were never found. Both men have a history of drug abuse.

DISCUSSION

Dixon claims that his waiver of the right to trial by jury was induced by the trial court’s offer of a benefit, i.e., the waiver would be considered a mitigating factor at sentencing and, therefore, under the federal and state Constitutions, was not voluntarily made. We disagree.

A criminal defendant may waive fundamental rights, including the right to a jury trial. (People v. Collins (2001) 26 Cal.4th 297 , 305 [ 109 Cal.Rptr.2d 836 , 27 P.3d 726 ] (Collins).) A defendant’s waiver of the right to a jury trial, as with other fundamental rights, however, may be accepted by the court only if done in a knowing, intelligent, and voluntary manner. (Colorado v. Spring (1987) 479 U.S. 564 , 573 [ 93 L.Ed.2d 954 , 107 S.Ct. 851 ].) Coercion, either in the form of penalizing a defendant for exercising a constitutional right or promising leniency to a defendant for refraining from exercising a right, renders a waiver involuntary. (Collins, supra, at pp. 306-309.)

Here, on March 24, 2004, prior to the start of trial, the court was advised that counsel for Wallace and Dixon were considering whether to waive jury trial. The decision centered on an evidentiary ruling not yet made by the court—whether the declaration obtained from Wallace would be admissible before a jury. On March 26, the court ruled that, although Wallace’s admission would be admissible in a jury trial, the part of the declaration exonerating Dixon would not be. There was extensive discussion about the impact of this ruling. On March 29, defense counsel notified the court that Dixon was prepared to waive his right to a jury trial. Counsel asked for an indicated sentence. The court said, “As you all know, when someone either goes by way of a jury trial or pleads out I do consider the fact that a jury is not going to be used to try the case as a mitigating factor, so I factor that into any sentencing decision I make. How that will play out in this case, I said I don’t know.” Counsel then asked the court whether a Romero motion to strike Dixon’s priors would be considered “frivolous.” The court responded, “Well, I don’t know.” It continued, “if we don’t have a jury that’s something I consider as a mitigating factor. What I will do with the sentencing, I’m not sure. What I can tell you is I will consider that in making a decision.” After some further discussion with counsel, the court asked Dixon, “Is that what

That same morning, several other evidentiary matters were discussed at length. Wallace asked to address the court. He told the court the evidence was overwhelming against him and he was likely to be convicted. The deputy district attorney explained that the issue preventing resolution of the case was the gun enhancement and that, as his defense attorney had advised, it was in Wallace’s best interest to go to trial on that issue. The prosecutor was unwilling to reduce the enhancement charged and would require a straight-up plea to resolve the issue without trial. The deputy district attorney then turned to Dixon and said, “With regard to Mr. Dixon, similarly there is an effort being made by his attorney to do the very best. ... It was why he was counseled to consider a court trial in this case, not because his attorney’s throwing in the towel, but because there is evidence that will be able to come in that can’t easily be presented in front of a jury that would, in fact, be precluded in front of a jury.”

Wallace continued to ask why he could not simply “deal” with the trial court. Further discussion took place. The deputy district attorney explained in detail to both defendants that if they waived a jury trial, Wallace would be able to explain his involvement and Dixon could explain whether he was there, how he knew Wallace, and how he got the money. He told them the defense attorneys were attempting to put them in the best position possible to try this case and a court trial was the best option. The prosecutor explained, “But you will have a hard time testifying in front of a jury because they will look at your priors if you testify. You’ll be impeached with them.” The court stated, “Then, Mr. Wallace, what [the district attorney] said is absolutely correct. He broadened it to include Mr. Dixon, but any trial we’re going to have is going to be a joint trial unless both sides give up a right to a jury trial .... I think the single thing that you’re most concerned about is the firearm because the length of the enhancement. If you get rid of that, I guess you would be willing to plead.” The court continued, “[Yjou’re really in a very bad way here, Mr. Wallace. . . . [T]here’s no way to resolve it, so it’s either going to be a jury trial for both of you or a court trial for both of you. I understand your position, sir. It’s been made clear from the beginning.”

Dixon’s counsel then asked for a moment. There was an off-the-record discussion. When proceedings resumed, Dixon’s counsel stated: “Your Honor, Mr. Dixon at this time would waive his right to a jury, and if I might just for the record ... I think Mr. Dixon is doing that because you said it’s in his

In light of Collins, we do not apply a prejudice analysis here. Collins held that, where a plea has been obtained by an offer to reward a defendant for refraining from the exercise of a constitutional right, the waiver is not voluntary and the error is structural, requiring reversal. (Collins, supra, 26 Cal.4th at p. 311.) It rejected using a prejudice analysis. (Ibid.) As an intermediate appellate court, we are bound by Collins. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].) Here, however, this case compels a factual conclusion that the court’s earlier improper promise to treat the waiver as a mitigating factor at sentencing was rejected by Dixon and did not induce Dixon’s subsequent waiver of his right to a jury trial. Unlike Collins, Dixon’s waiver and the improper promise are sufficiently separate in time to allow us to conclude with confidence that the improper promise did not induce the waiver. Dixon rejected the initial advice of counsel that he be tried in front of the court rather than a jury. It was only much later in the hearing, after assertions were made by Wallace and the prosecutor on unrelated matters, that Dixon decided he wished to waive his right to a jury trial. As a result, there is no structural error requiring per se reversal. (See Arizona v. Fulminante (1991) 499 U.S. 279 , 310 [ 113 L.Ed.2d 302 , 111 S.Ct. 1246 ] [structural error is constitutional deprivation affecting framework within which trial proceeds, not simply error in trial process itself]; Rose v. Clark (1986) 478 U.S. 570 , 577-578 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ] [structural error undermines ability of criminal trial to reliably determine guilt or innocence and is fundamentally unfair].)

Since we do not conclude that the waiver was induced by a promise, we need not address Dixon’s contention that the trial court breached its promise

Dixon first argues that this statement, exonerating him from involvement in the robbery, was admissible as an exception to the hearsay rule (Evid. Code, § 1200) because it was a statement made against a pecuniary or proprietary interest (Evid. Code, § 1230). We review claims of evidentiary error under an abuse of discretion standard. (People v. Cooper (2007) 148 Cal.App.4th 731 , 740 [ 56 Cal.Rptr.3d 6 ].)

According to Dixon, by excluding Dixon as a codefendant, Wallace was exposing himself to an increased risk of civil liability. With $17,595.49 at stake, Wallace’s statement was contrary to his pecuniary interest, and “a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid. Code, § 1230.) This argument fails because it was never raised in the trial court and is waived on appeal. “[A]n appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.]” (People v. Vera (1997) 15 Cal.4th 269 , 275 [ 62 Cal.Rptr.2d 754 , 934 P.2d 1279 ].) Next, Dixon argues that the statement was admissible because it was against Wallace’s penal interest. This argument was raised, but we do not see how it assists Dixon. The trial court found that parts of the statement were admissible as statements against Wallace’s penal interest and ruled they were admissible. It ordered those portions that were not against Wallace’s penal interest, i.e., those related to Dixon, to be redacted. A court may redact portions of the statement not “disserving to the interests of the declarant.” (People v. Leach (1975) 15 Cal.3d 419 , 441 [ 124 Cal.Rptr. 752 , 541 P.2d 296 ]; see also People v. Duarte (2000) 24 Cal.4th 603 , 612 [ 101 Cal.Rptr.2d 701 , 12 P.3d 1110 ] [court must redact portions of statement not falling within hearsay exception].) In his reply brief, Dixon argues that, because those portions ordered redacted were statements against Wallace’s pecuniary interests, once the court found other parts of the statement were against Wallace’s penal interest, the entire statement should have been admitted. This is nothing more than an attempt to piggyback the argument waived into this one. The only evidentiary claim made at trial was that the statement was against Wallace’s penal interest. The trial court found this was a valid reason for admission and ruled the statement would be redacted.

Last, Dixon argues that the entire declaration should have been admitted under federal constitutional authority. He claims that, given the rule set down in Chambers v. Mississippi (1973) 410 U.S. 284 [ 35 L.Ed.2d 297 , 93 S.Ct. 1038 ], statements made under circumstances that provide assurance of their reliability and that are critical to the defense cannot be excluded on hearsay

In Chambers, the defendant was tried and convicted of the murder of a policeman. Shortly after the crime, a third party confessed to several friends on separate occasions that he killed the officer. He later made a sworn confession to the crime. The defense centered on showing that the third party had killed the police officer. (Chambers v. Mississippi, supra, 410 U.S. at p. 289.) The trial court refused to allow Chambers to treat the third party as an adverse witness once the sworn confession was repudiated on the stand because Mississippi law prohibits impeaching one’s own witness. (Id. at pp. 291, 295.) The court also rejected on hearsay grounds Chambers’s attempt to introduce the testimony of three witnesses to whom the third party had admitted shooting the officer. (Id. at pp. 292-293.) Mississippi recognized as an exception to the hearsay rule statements against pecuniary interest, but not statements against penal interest. (Id. at p. 299.) Observing that Chambers’s defense was “far less persuasive” than it might have been had he been allowed to admit testimony from other sources about the confession, the Supreme Court stated that the hearsay statements came with “considerable assurance of their reliability” because the confession was given spontaneously to friends shortly after the crime, and the statements were corroborated through other evidence. (Id. at pp. 294, 300.) Given these circumstances, the Supreme Court concluded that Chambers had been deprived of a fair trial. (Id. at p. 302.)

In Green, the Supreme Court again determined that the exclusion of hearsay evidence under circumstances similar to those in Chambers violated the defendant’s right to a fair trial. Two codefendants abducted the victim and, acting either in concert or separately, raped and murdered her. The first defendant, Moore, was convicted in a separate trial. In his trial, Green attempted to introduce evidence that Moore had confessed to a close friend that he had killed the victim after sending Green on an errand. The victim had been shot more than once with the same gun. In the absence of any direct evidence, the prosecution argued that the jury could infer from the multiple gunshot wounds that both Green and Moore were the shooters. (Green v. Georgia, supra, 442 U.S. at p. 96.) The Supreme Court concluded that the statement was reliable and ruled it should have been admitted. The court observed that Moore made his statement spontaneously to a close Mend. The evidence corroborating the confession was ample and sufficient to procure a conviction of Moore and a capital sentence. Further, the statement was

In Chia, three undercover drug enforcement agents were shot and two died in a drug sting. During the melee that followed the shootings, two of the shooters were killed and the third, Wang, was seriously wounded. A fourth man, Chia, was present but not directly involved in the shooting. Wang made five separate statements to police—the first while Wang was awaiting surgery at a point when he did not know whether he would survive. Each time, Wang said that Chia was not involved in the drug deal or the murders. Wang indicated that Chia knew about the plan to rob the agents during the deal and had warned Wang not to participate. Chia was present at the shooting only because he had come along to protect Wang from the other gunmen. Wang’s statements were consistent with what the agents had observed during their surveillance of the four men’s activities prior to the murders. At Chia’s trial, Wang refused to testify and the trial court ruled that his exculpatory hearsay statements were not admissible. Chia was convicted. (Chia v. Cambra, supra, 360 F.3d at pp. 999-1002.)

The primary issue at trial was Chia’s motive and the nature of his actions the day the Drug Enforcement Agency agents were murdered. His close proximity to the scene of the crime and his frequent interaction with the others suggested he was a part of the criminal conspiracy. The Ninth Circuit concluded that the exclusion of Wang’s statements violated Chia’s constitutional right to present a defense because the statements were inherently reliable and trustworthy and were key to Chia’s defense. (Chia v. Cambra, supra, 360 F.3d at p. 1003.) Importantly, there was no one else who could testify to Chia’s limited involvement in the murders. In reaching its conclusion, the court observed that Wang’s initial statement was made at a time he thought he was going to die. It strongly implicated Wang in the murders, as a shooter and as a coconspirator. Wang then repeated his statement a number of times to officers. In addition, Wang’s statements were consistent with the observations of police officers who had watched the area before the murders occurred. (Id. at pp. 1004—1005.)

We begin by observing that Green and Chambers are factually distinguishable from Dixon’s situation. In both of these cases, the statement excluded was “I did it,” not “he didn’t do it.” As both opinions point out, these types of statements are inherently reliable because they are against the speaker’s penal interest. In both Green and Chambers, the “I did it” statement excluded the defendant as the guilty party. Also, the statements were made spontaneously and without any motive to exonerate or implicate a coconspirator. That is not the case here. Dixon sought the declaration from Wallace who had already been identified by Wallace’s mother as one of the robbers. Wallace was

We are not required to follow the majority opinion in Chia and decline to do so. In Chia, Wang’s inculpatory statements did not exculpate Chia and, therefore, there was nothing inherently reliable about them, except that they could be dying declarations. To the contrary, we agree with the dissent, which distinguished its facts from those in Chambers and Green and questioned the majority’s conclusion that reversal was compelled. (Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644 , 653 [ 20 P.2d 940 ] [California not bound by decisions of federal appellate courts]; Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93 , 97 [ 3 Cal.Rptr.3d 365 ] [state courts not required to adhere to decisions of federal appellate courts even on federal questions].)

In any event, even if we were bound by Chia, we would conclude that Dixon’s case is distinguishable from Chia as well as from Chambers and Green. Wallace’s declaration was anything but spontaneous. It was a written declaration obtained by Dixon’s private investigator. The two obviously had time to confer about it. They were housed in the same jail and Dixon knew in advance that Wallace would sign the declaration. It is only a single statement, not one that was repeated to law enforcement numerous times. Further, it was not reliable since Wallace had a motive to lie. Wallace knew he would most likely be convicted and that Dixon faced a much longer sentence given his prior strike convictions. Wallace also knew he was terminally ill and believed he had nothing to lose.

We conclude that the trial court did not abuse its discretion in finding Wallace’s statement to be untrustworthy and excluding it under California’s hearsay law. (People v. Guerra (2006) 37 Cal.4th 1067 , 1113 [ 40 Cal.Rptr.3d 118 , 129 P.3d 321 ] [abuse of discretion standard applies to any ruling on admissibility of evidence by trial court].) In addition, there is no constitutional error. The holding in Chambers is premised on a conclusion that the evidence was reliable. (See People v. Garcia (2005) 134 Cal.App.4th 521 , 539 [ 36 Cal.Rptr.3d 181 ] [Chambers does not require admissibility of exculpatory statement when made under unreliable circumstances].) Wallace’s exculpatory statements were not inherently reliable and were properly excluded.

The judgment is affirmed. The trial court shall correct the abstract to reflect that trial was by the court and distribute new copies to the appropriate authorities.

Cornell, J., and Dawson, J., concurred.

A petition for a rehearing was denied August 15, 2007, and appellant’s petition for review by the Supreme Court was denied October 24, 2007, S155781.