Filed 7/18/14 P. v. Sanchez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064627
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11900329)
                   v.

FELIPE GUERRA SANCHEZ,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
         In November 1985, the dead body of Carmen Achutegui was discovered in a field
outside the town of San Joaquin. Evidence at the scene led authorities to believe she had
been run over by a car. Felipe Guerra Sanchez was identified as a suspect in the ensuing
homicide investigation, but police were never able to locate him. The crime went
unsolved for nearly 23 years until Sanchez was found working in Manteca under an
assumed identity.
       In 2008, investigators from the Department of Motor Vehicles (DMV) arrested
Sanchez on suspicion of identity theft. When questioned about the death of Ms.
Achutegui, Sanchez made a series of false and contradictory statements before claiming
he struck the victim with an automobile while driving drunk. He was eventually brought
to trial on a murder charge in 2012.
       The prosecution built its case around Sanchez’s unrecorded confession at the time
of his arrest and DNA testing which indicated that he had sexual intercourse with the
victim prior to her demise. The murder theory was further supported by testimony from
retired law enforcement officers who provided details about the information they had
gathered before the case went cold. There was also evidence of jailhouse conversations
between Sanchez and his brother that were highly suggestive of a witness tampering plot,
and eyewitness accounts from individuals who heard Sanchez make incriminating
statements on the night of the killing.
       Sanchez was convicted of first degree murder and received a prison sentence of 25
years to life. His appeal of the conviction challenges two evidentiary rulings by the trial
court. The first issue concerns the exclusion of hearsay statements attributed to witnesses
who were deceased at the time of trial. Sanchez also claims the admission of certain
testimony by one of the investigating officers violated his rights under the confrontation
clause of the Sixth Amendment to the United States Constitution. We find no error in the
trial court’s rulings, nor any infringement of appellant’s constitutional rights.
       As for the sentencing phase of the proceedings, Sanchez contends the trial court
erred by failing to award him presentence conduct credits. Respondent appropriately
concedes this issue, but disagrees with Sanchez about the amount of time to which he is

                                              2.
entitled. Both parties miscalculate the relevant numbers. Nevertheless, Sanchez’s
sentence must be modified to reflect an additional 626 days of conduct credit against his
prison term. We affirm the judgment as so modified.
                               STATEMENT OF FACTS
1985 Homicide Investigation
       The investigation into the victim’s death began on the morning of November 8,
1985. Pete Chavez, then a homicide detective for the Fresno County Sheriff’s
Department, responded to a report of a body found on the outskirts of San Joaquin, a rural
community located in the western region of the county. A deceased woman, estimated to
be in her 30s, had been discovered lying face down in a field next to a dirt road. She
appeared to have been run over by a car.
       Ralph Preheim, the sheriff’s criminologist, processed the scene. This entailed
photographing the victim and her surroundings, taking measurements of fresh tire tracks
left near the body, and collecting physical evidence. Deputy Preheim determined the
point of initial impact to be an area in the road where investigators found a shoe and
fragments of glass. There were footprints and tire tracks leading into the field where the
victim lay. The tire tracks extended beyond the corpse in a manner which suggested the
woman had been run over twice; once when the vehicle entered the field and again as it
reversed back out onto the road. A second shoe was found next to the body, as was a
purse containing approximately $64 in cash.
       Detective Chavez spoke to a witness at the scene who recognized the victim from
a local bar called La Pantera Azul. The owner of the bar helped police identify the
decedent as Carmen Achutegui, also known by the nickname “Cuchi Cuchi.” According
to some witnesses, Ms. Achutegui was reputed to be a prostitute.
       Statements from employees and patrons of La Pantera Azul placed Ms. Achutegui
at the bar in the early morning hours of November 8, 1985. A waitress remembered
seeing her at approximately 1:00 a.m., one hour before closing time. Other witnesses

                                             3.
observed Ms. Achutegui conversing with a man whom police later identified as Felipe
Sanchez.
       Further investigation revealed that Sanchez had been staying with friends in a
trailer located a few blocks away from La Pantera Azul. Two of the trailer’s occupants
told Detective Chavez they had last seen Sanchez in a drunken state on the morning of
Ms. Achutegui’s death. The men recalled waking up in the middle of the night to find
Sanchez vomiting in the restroom and saying that he needed to leave town because he
had killed two women. The investigating officers never found a second homicide victim,
nor did they succeed in locating Sanchez.
2008 Identity Theft Investigation
       In June 2008, the California DMV discovered that two men, each purporting to be
Jose Manuel Rodriguez, were simultaneously using the same social security number. It
was determined that the real Jose Manuel Rodriguez lived in Fresno. The unauthorized
use of Mr. Rodriguez’s information was traced back to Sanchez, who was then working
for a trucking company in Manteca.
       DMV investigators arrested Sanchez in October 2008. After waiving his Miranda
rights (Miranda v. Arizona (1966) 384 U.S. 436), Sanchez participated in an unrecorded
interview during which he was asked about the death of Carmen Achutegui. Sanchez
admitted being at La Pantera Azul on the night in question and told the investigators that
Ms. Achutegui had been flirting with him. He confessed to hitting her with his car, but
claimed his memory of the events was spotty because he had been extremely intoxicated
at the time. The confession contained contradictory statements about how the incident
occurred, none of which matched up with the physical evidence found at the scene.
Sanchez said he kept driving after hitting the victim, and suggested a second vehicle
travelling behind him must have run over Ms. Achutegui in the field.
       Sanchez further admitted to fleeing south after the killing, abandoning his car on
the streets of Los Angeles, and buying a bus ticket to Mexico. The make and model of

                                            4.
the automobile was never confirmed. Witness statements obtained in 1985 variously
described the vehicle as a mid-1970s Ford LTD four-door sedan or a Mercury Cougar,
with brown or maroon paint. Sanchez told investigators he had owned a brown 1969
Dodge Coronet and later drove a 1979 Pontiac Trans Am.
Trial and Sentencing
       The Fresno County District Attorney charged Sanchez with a single count of
murder (Pen. Code, § 187, subd. (a)). The matter was tried before a jury in January and
February 2012.
       The prosecution theorized that Ms. Achutegui survived an initial roadway
collision with Sanchez’s car and then ran towards the location where her body was found.
In other words, Sanchez allegedly drove into the field in pursuit of the victim, struck her
from behind while she was running, and purposely crushed her body under the weight of
his vehicle. Crime scene photos and the results of a subsequent autopsy were consistent
with this theory. The medical examiner’s trial testimony described the cause of death as
a “crush injury to the chest,” resulting in severely lacerated and collapsed lungs, 10
broken ribs, and several other internal injuries.
       Sanchez’s own accident reconstruction expert agreed that the tire tracks left at the
scene were indicative of an intentional effort to navigate the automobile off the road and
into the field. Defense counsel questioned the motive for such behavior, particularly
because there were no signs of robbery or sexual assault. There was, however, DNA
evidence which showed Sanchez had sex with the victim within approximately 24 hours
of her death.
       The prosecution’s case-in-chief included testimony from a number of Sanchez’s
friends and acquaintances, most of whom were reluctant to answer questions about his
behavior on the night of Ms. Achutegui’s death. Among these witnesses were Salvador
Martinez and Jose Orozco, the two men who told Detective Chavez that they had heard
Sanchez admit to killing two women. Mr. Orozco confirmed this information at trial and

                                              5.
also testified to seeing a dent in the front of Sanchez’s car, “as if it had hit something.”
Salvador Martinez, however, changed his original story by claiming Sanchez told him he
had killed a wild animal. Mr. Martinez also acknowledged receiving an anonymous
phone call prior to trial from someone who threatened him with retribution if he testified
against the defendant. Transcripts of recorded jailhouse phone calls between appellant
and his brother suggested that Sanchez’s family members attempted to influence the
testimony of Mr. Martinez and several other witnesses.
       Sanchez’s defense strategy focused on reinterpreting the physical evidence to
support a theory of third party culpability. Most of these efforts relied on Deputy
Preheim’s track width measurements at the crime scene, which measured 62.5 inches.1 A
defense expert compared this measurement against a vehicle database containing the
track widths for cars manufactured during the 1960s and 1970s to determine if any of the
automobiles linked to Sanchez could have made the same tracks. The expert found that
the 1969 Dodge Coronet had a track width of only 60 inches. The 1979 Pontiac Trans
Am had a track width of 61 inches. Most models of the Ford LTD and Mercury Cougar
had track widths ranging from 64-67 inches depending on the year and body style, though
a few versions of the Cougar measured 63 inches. The expert’s findings were rounded to
the nearest inch based on the original wheel and tire sizes of each vehicle. The latter
assumption was critical, since it was conceded that the use of after-market parts and other
customizations could change the track width of any given car.




       1 Deputy Preheim measured the horizontal distance between the rear tires of the
vehicle based on his determination of which tracks were made by the back tires as
opposed to the front tires. It was his custom and practice to measure between the center
lines of each tire if those points could be determined from the tracks. As explained by the
defense expert, accident reconstructionist Robert Liebbe, the proper term for such a
measurement is “track width.”



                                              6.
       The jury found Sanchez guilty of first degree murder. He was sentenced to a term
of 25 years to life in prison, with credit for 1,254 days of presentence custody.
Presentence conduct credits were denied pursuant to Penal Code section 2933.2.
                                      DISCUSSION
   A. Exclusion of Hearsay Evidence
Background
       Sanchez moved in limine for permission to introduce hearsay statements made by
two people who were no longer alive at the time of trial. Both declarants spoke with
sheriff’s deputies during the early stages of their investigation into Ms. Achutegui’s
death. Proof of the witnesses’ statements and the circumstances under which they were
made was limited to the contents of two police reports. Our summary of the proffered
evidence comes from those reports.
       Robert Alejo, then a farm laborer working in the San Joaquin area, was brought to
the crime scene by his employer on the morning of November 8, 1985 to speak with
detectives about the homicide. The details of what precipitated this meeting are
unknown. Mr. Alejo believed he was familiar with the victim, though it does not appear
that he ever saw the dead body. The police report states: “I advised Mr. Alejo of a
female’s body being found at this location and described the victim to him and Mr. Alejo
[said] the description of the victim matched that of a female he knows only by the
nickname of ‘La Huerda.’ Mr. Alejo stated he has known this female for some time and
knows her to be a barmaid working at La Pandeda Bar located in the City of San
Joaquin.” (Capitalization omitted.)
       Mr. Alejo had seen “La Huerda” approximately two weeks earlier in the same area
where the victim was found. She was accompanied by two Hispanic males and one
Hispanic female. The group congregated around a green Ford Torino coupe. The police
report contains detailed descriptions of the three companions, but no identifying
information about “La Huerda.”

                                             7.
       “Mr. Alejo proceeded to state [that] he has seen the two described male subjects
on prior occasions in the City of San Joaquin and has seen [one of the men] with La
Huerda on occasions. Mr. Alejo stated he has on other occasions seen La Huerda in the
subject’s green Ford Torino parked at this location.” (Capitalization omitted.) In
addition, the witness informed detectives that he drove by the vicinity of the crime scene
at 7:00 p.m. on November 7, 1985, and again at approximately 5:30 a.m. and 6:30 a.m.
the next day, but saw no one in the area at those times.
       The second declarant was John Apodaca. Speaking with a detective on the
afternoon of November 9, 1985, Mr. Apodaca “said that a subject named Valariano
(Shorty) Flores had stated that he had seen the victim and Felipe Sanchez leave the bar
together on the morning of the homicide.” (Capitalization omitted.) Mr. Apodaca further
advised that he personally witnessed a vehicle drive out of the field (i.e., the crime scene)
at approximately 2:00 p.m. or 3:00 p.m. on the afternoon of November 7, 1985. He
described the car as a four-door Mercury Cougar with reddish/brown paint. An
individual named “Daniel” (last name unknown) told Mr. Apodaca that the driver of the
car was Felipe Sanchez.
       Sanchez’s motion in limine acknowledged the statements attributed to Mr. Alejo
and Mr. Apodaca were hearsay, but argued that excluding the evidence would violate his
constitutional due process rights. Defense counsel attempted to draw parallels between
the facts of Sanchez’s case and those in Chambers v. Mississippi (1973) 410 U.S. 284
(Chambers), and also made passing reference to Green v. Georgia (1979) 442 U.S. 95.
No other cases were cited in the moving papers.
       The motion was heard on December 7, 2011, at which point the trial court found
the evidence did not fall within an exception to the hearsay rule, and was thus
inadmissible. The trial court also discussed at length the requirements set forth in




                                             8.
Evidence Code section 1350, which it referred to as the “Unavailable Declarant Hearsay
Rule.”2 Concerned the judge had lost sight of his arguments, Sanchez filed a motion for
reconsideration. The second motion was heard on January 18, 2012, approximately five
days prior to the start of trial. The court again ruled to exclude the evidence, this time
distinguishing Chambers, supra, and finding that the “factors indicating the
trustworthiness of the out-of-court statements” at issue in the Chambers decision were
“truly non-existent in the case at hand.”
         Incidentally, the information contained in the police reports was later admitted into
evidence for non-hearsay purposes. Sanchez does not acknowledge this in his briefs. All
of his arguments on appeal concern the propriety of the trial court’s ruling at the in limine
stage.
Standard of Review
         “[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence, including one that turns on the
hearsay nature of the evidence in question.” (People v. Waidla (2000) 22 Cal.4th 690,
725, citations omitted.) This standard is deferential to the trial court’s evaluation of the
evidence from a factual standpoint, including those findings which pertain to the
trustworthiness of a declarant’s out-of-court statements. (People v. Edwards (1991) 54
Cal.3d 787, 820 [“A reviewing court may overturn the trial court’s finding regarding
trustworthiness only if there is an abuse of discretion.”]; see People v. DeHoyos (2013)


         2
         Evidence Code section 1350 establishes a hearsay exception in serious felony
cases for out-of-court statements made by an unavailable witness when “there is clear and
convincing evidence that the declarant’s unavailability was knowingly caused by, aided
by, or solicited by the party against whom the statement is offered for the purpose of
preventing the arrest or prosecution of the party and is the result of the death by homicide
or the kidnapping of the declarant.” The exception is designed to aid the prosecution, if
warranted under the circumstances of the case, and would not ordinarily be invoked by a
defendant. (See Evid. Code, § 1350, subd. (b).)



                                               9.
57 Cal.4th 79, 132 (DeHoyos) [“[A] trial court has broad discretion to determine whether
a party has established the foundational requirements for a hearsay exception….”].)
Analysis
       Sanchez claims the hearsay contained in the 1985 police reports was admissible by
virtue of the “indicia of reliability” found in the statements themselves and the
circumstances under which they were made. He further contends that “[b]ecause the
missing testimony was sufficient to raise a reasonable doubt as to [appellant’s] guilt, and
because the statements were admissible under general reliability principles, this Court
should find that the improper exclusion of the evidence was prejudicial, requiring
reversal of the judgment.” We find no merit in these arguments.
       “‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code § 1200, subd. (a).) Unless subject to an exception, hearsay is
inadmissible. (Id., subd. (b).) “‘The chief reasons for this general rule of inadmissibility
are that the statements are not made under oath, the adverse party has no opportunity to
cross-examine the declarant, and the jury cannot observe the declarant’s demeanor while
making the statements.’” (People v. Duarte (2000) 24 Cal.4th 603, 610, quoting People
v. Fuentes (1998) 61 Cal. App. 4th 956, 960-961.)
       Sanchez’s arguments concerning “general reliability principles” and a supposed
“indicia of reliability” exception to the hearsay rule seem to allude to Rule 807 of the
Federal Rules of Evidence. This rule allows the introduction of otherwise inadmissible
hearsay when it is shown that the evidence possesses “circumstantial guarantees of
trustworthiness” (among other prerequisites). (Fed. Rules Evid., rule 807, subd. (a).)
However, “California, unlike federal courts and some state jurisdictions, does not have a
‘residual hearsay’ exception that permits any hearsay statement into evidence as long as it
bears sufficient indicia of reliability.” (In re Cindy L. (1997) 17 Cal.4th 15, 27-28;
accord, People v. Gonzales (2012) 54 Cal.4th 1234, 1289 & fn. 24.)

                                             10.
       Because the hearsay did not fall within a statutory exception, Sanchez must show
the trial court’s ruling contravened binding judicial precedent in order to establish an
error under state law. (People v. Ayala (2000) 23 Cal.4th 225, 268 (Ayala) [“‘exceptions
to the hearsay rule are not limited to those enumerated in the Evidence Code; they may
also be found in . . . decisional law.’”].) No such showing has been made. Instead,
appellant cites to a number of plainly inapposite cases which deal with the right of
confrontation under the Sixth Amendment to the federal Constitution and the
admissibility of hearsay without opportunity for cross-examination in the era predating
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
       In particular, Sanchez claims Idaho v. Wright (1990) 497 U.S. 805 (Wright) stands
for the proposition “that even though hearsay is usually inadmissible if it does not fall
under some exception to the hearsay rule, the statement of an unavailable witness can be
admitted if it bears adequate indicia of reliability.” This contention is far off the mark.
The Wright opinion held that failure to exclude certain hearsay statements made by a
two-and-one-half-year-old girl to a pediatrician, which were admitted at trial pursuant to
a residual hearsay exception in Idaho’s evidence code, violated the defendant’s
constitutional right to confront the witness.
       The Wright decision relied on the holding in Ohio v. Roberts (1980) 448 U.S. 56
(Roberts) [overruled by Crawford, supra, 541 U.S. at pp. 60-69], which provided general
guidelines for determining “when incriminating statements admissible under an exception
to the hearsay rule also meet the requirements of the Confrontation Clause.” (Wright,
supra, 497 U.S. at p. 814.) Under the Roberts approach, the prosecution must either
produce the witness or demonstrate the unavailability of the witness. “[O]nce a witness
is shown to be unavailable, ‘his statement is admissible only if it bears adequate “indicia
of reliability.” Reliability can be inferred without more in a case where the evidence falls
within a firmly rooted hearsay exception. In other cases, the evidence must be excluded,



                                                11.
at least absent a showing of particularized guarantees of trustworthiness.’” (Id. at pp.
814-815.)
       The issue in Wright was whether the statements of an unavailable child witness
“bore sufficient indicia of reliability to withstand scrutiny under the [Confrontation]
Clause.” (Wright, supra, 497 U.S. at p. 816.) Since the statements were not admitted
under a firmly rooted hearsay exception, but rather under Idaho’s residual hearsay
exception, the court considered whether there were “‘particularized guarantees of
trustworthiness’” to be found in the circumstances under which the statements were
made. (Id. at p. 819.) The analysis which followed is what Sanchez refers to as the
residual trustworthiness test: “[The rationale behind firmly rooted hearsay exceptions is
that] if the declarant’s truthfulness is so clear from the surrounding circumstances that the
test of cross-examination would be of marginal utility, then the hearsay rule does not bar
admission of the statement at trial.” (Id. at p. 820.) To be admissible under the
constitutional standard, the evidence “must similarly be so trustworthy that adversarial
testing would add little to its reliability.” (Id. at p. 821.) “[U]nless an affirmative reason,
arising from the circumstances in which the statement was made, provides a basis for
rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the
Confrontation Clause requires exclusion of the out-of-court statement.” (Ibid.)
       The California cases cited by Sanchez discuss the “trustworthiness” of certain
types of hearsay under circumstances where the evidence at issue satisfied a well-
established exception to the hearsay rule under state law, but was objected to on the basis
of the defendant’s federal constitutional right of confrontation. (E.g., People v.
Cervantes (2004) 118 Cal.App.4th 162, 170-177 [statement against penal interest
(§ 1230)]; People v. Duke (1999) 74 Cal.App.4th 23, 28-29 [same]; People v.
Greenberger (1997) 58 Cal.App.4th 298, 326-329, 334-335 [same].) As noted above,
California does not have a catchall exception to the hearsay rule based on “indicia of
reliability.” (Gonzales, supra, 54 Cal.4th at p. 1289 & fn. 24; In re Cindy L., supra, 17

                                              12.
Cal.4th at pp. 27-28.) The trial court’s ruling to exclude the statements Mr. Alejo and
Mr. Apodaca as hearsay not subject to an exception was entirely consistent with state
law, and thus did not constitute an abuse of discretion.
       Having found no state law error, we reject Sanchez’s federal constitutional claim
regarding his right to present a defense. “Defendant’s argument fails to account for the
general rule that the application of the ordinary rules of evidence under state law does not
violate a criminal defendant’s federal constitutional right to present a defense, because
trial courts retain the intrinsic power under state law to exercise discretion to control the
admission of evidence at trial.” (People v. Abilez (2007) 41 Cal.4th 472, 503.)
Exceptions to this rule are rare, and have been found only in “extraordinary and unusual
circumstances.” (Ibid.) One of the best known examples of an exception to the general
rule is Chambers, supra, which Sanchez relied upon below and cites again on appeal.
       The defendant in Chambers was accused of murdering a police officer in 1969.
Shortly after the crime occurred, a third party confessed to several friends that he had
killed the officer. He later made a sworn confession to the crime. At trial, the defendant
called the alleged perpetrator as a witness in an attempt to elicit the same information.
The individual repudiated his confession on the stand, and the defendant was denied
permission to examine him as an adverse witness based on Mississippi’s “‘voucher’
rule,” which barred parties from impeaching their own witnesses. (Chambers, supra, 410
U.S. at pp. 294-295.) In addition, Mississippi law did not recognize an exception to the
hearsay rule for statements made against penal interests, thus preventing the defendant
from introducing evidence that the witness made self-incriminating statements to three
other people. (Id. at pp. 297-299.)
       Observing that Mr. Chambers’ defense was “far less persuasive” than it might
have been had he been allowed to admit testimony from other sources about the
confession, the United States Supreme Court ruled that the hearsay statements came with
“considerable assurance of their reliability” because (1) the confession was made

                                             13.
spontaneously to a close acquaintance shortly after the crime occurred, (2) it was
corroborated through other evidence, (3) the declarant’s statements were diametrically
opposed to his penal interests, and (4) the declarant was available in court for cross-
examination. (Chambers, supra, 410 U.S. at pp. 300-301.) Given these circumstances,
the Supreme Court concluded that the defendant had been deprived of his constitutional
right to a fair trial. (Id. at p. 302.)
       In Ayala, supra, the California Supreme Court considered whether a criminal
defendant “had either a constitutional or a state law right to present exculpatory but
unreliable hearsay evidence that is not admissible under any statutory exception to the
hearsay rule.” (Ayala, supra, 23 Cal.4th at p. 266.) Relying on Chambers, the appellant
argued that the trial court had “infringed on various constitutional guaranties when it
barred the jury from hearing potentially exculpatory evidence.” (Id. at p. 269.) Our high
court rejected this argument, holding that “‘Few rights are more fundamental than that of
an accused to present witnesses in his own defense. [But in] the exercise of this right, the
accused, as is required of the State, must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.’ Thus, ‘[a] defendant does not have a constitutional right to the admission of
unreliable hearsay statements.’ Moreover, both we and the United States Supreme Court
have explained that Chambers is closely tied to the facts and the Mississippi evidence law
that it considered. Chambers is not authority for the result defendant urges here.” (Ibid,
citations omitted.)
       Although Ayala involved statements made to a defendant’s own private
investigator, the Chambers decision has specifically been held not to apply to a purported
eyewitness’s hearsay statements to police. (People v. Kegler (1987) 197 Cal.App.3d 72,
82-83.) “Not only was the declarant unavailable to explain those statements, but there
was no indication that the statements were reliable, as they lacked the conventional
indicia of reliability: they were not made under oath or other circumstances that impress

                                             14.
the declarant with the solemnity of the statements; the declarant’s word is not subject to
cross-examination; and she is not available in order that her demeanor and credibility
may be assessed by the jury.” (Id. at p. 83.)
       Considered against the backdrop of these authorities, we find no abuse of
discretion by the trial court in its measuring of the trustworthiness of the hearsay
attributed to Mr. Alejo and Mr. Apodaca. With regard to the latter witness, there were
multiple levels of hearsay linked to unknown individuals. Mr. Apodaca’s personal
knowledge was limited to his observation that a Mercury Cougar was present in the
vicinity of the crime scene several hours prior to the victim’s death.
       Mr. Alejo’s statements raise questions about whether the woman to whom he
referred in his conversations with police was actually Ms. Achutegui. Whereas several
witnesses had said the victim was known as “Cuchi Cuchi” and worked at La Pantera
Azul, Mr. Alejo spoke of a person who went by the nickname “La Huerda” and worked at
“La Pandeda Bar.” These important discrepancies would have certainly been addressed
on cross-examination had the witness been available to testify. The prosecution also had
no way of exploring the possibility that Mr. Alejo’s statements were the product of
coercion by Sanchez’s friends and relatives, or that he had some other motivation to
provide misleading information to the police. (See Ayala, supra, 23 Cal.4th at p. 269
[“Via cross-examination or further investigation the prosecutors might have discovered
evidence, for example, that defendant had coerced [the deceased witnesses] into making
[their statements], just as they had introduced evidence that he induced [another witness]
to perjure himself….”].) Contrary to Sanchez’s arguments, the truthfulness of the
hearsay was not so obvious from the surrounding circumstances that the test of cross-
examination would have been of marginal utility.
       Furthermore, Sanchez was ultimately successful in getting the substantive
information from the police reports admitted at trial for nonhearsay purposes. Through
examination of Detective Chavez, the defense established that the police were told Ms.

                                             15.
Achutegui had been seen at the location where her body was found on prior occasions, in
or near a green Ford Torino that did not match the description of Mr. Sanchez’s vehicle,
with a person described as a Mexican male, approximately 5’5 in height and 145 pounds
with dark hair and a moustache. The defense relied on this information to support its
theory of third party culpability, including those arguments relating to the track width
measurements taken at the crime scene. Sanchez fails to show how the trial court’s
hearsay ruling at the in limine stage resulted in a violation of his constitutional right to
present a defense at trial.
   B. Sixth Amended Right to Confrontation
Background
       The defense called Detective Chavez to the witness stand during its case-in-chief
in an effort to criticize the original police investigation and suggest that detectives did not
follow up on leads pointing to suspects other than Sanchez. It was through this
examination of Detective Chavez that Sanchez’s attorney elicited testimony concerning
the information relayed to police by Robert Alejo and John Apodaca. On cross-
examination, the prosecution asked the witness, “[I]sn’t it true that part of the information
that led you to believe that Felipe Sanchez committed this murder[,] and why you
focused on him[,] was that he was seen – you had information he was seen leaving the
bar with the victim that night?” Prior to the witness’s answer, defense counsel said,
“Objection, calls for hearsay.” The trial court overruled the objection, and Detective
Chavez responded affirmatively.
       Sanchez claims the trial court’s failure to sustain the hearsay objection violated his
right to confront accusing witnesses as guaranteed by the Sixth Amendment to the federal
Constitution, and was inconsistent with the holdings of the United States Supreme Court
in Crawford, supra.




                                              16.
Standard of Review
       “In reviewing the trial court’s order overruling the hearsay objection, we apply the
deferential abuse of discretion standard of review.” (People v. Fields (1998)
61 Cal.App.4th 1063, 1067.) Legal questions concerning the constitutionality of
admitting the challenged evidence are reviewed de novo. (See People v. Seijas (2005)
36 Cal.4th 291, 304 [independent standard of review should be applied to rulings which
affect the constitutional right of confrontation].)
Analysis
       As a preliminary matter, we are inclined to agree with respondent that Sanchez
forfeited his claim by failing to object on constitutional grounds. (People v. Redd (2010)
48 Cal.4th 691, 730; People v. Raley (1992) 2 Cal.4th 870, 892 [hearsay objection
insufficient to preserve a claim under the confrontation clause].) Although his attorney
successfully moved in limine to “federalize” all objections made during trial, the
California Supreme Court has indicated that the particular grounds for an objection must
still be specified. (See People v. Thomas (2012) 54 Cal.4th 908, 938 [regarding failure to
preserve a claim of prosecutorial misconduct: “Even to the extent that defendant’s pretrial
motion to ‘federalize’ all defense objections was granted, the effect of granting the
motion was, as the trial court stated, that the trial objections would be ‘deemed to be
made under both California and Federal law.’ This did not excuse defendant from the
obligation of stating the specific ground for an objection in order to preserve the issue for
appeal.”)].) Assuming arguendo that the issue was preserved in this instance, we find
Sanchez’s claim to be unfounded.
       The Sixth Amendment to the United States Constitution provides that the accused
in a criminal prosecution “shall enjoy the right . . . to be confronted with the witnesses
against him[.]” (U.S. Const. amend. VI.) This right of confrontation applies to certain
types of extrajudicial statements. Where the statements at issue are testimonial hearsay,
the confrontation clause prohibits their admission unless: (1) the declarant is unavailable;

                                              17.
and (2) the defendant has been provided a previous opportunity to cross-examine the
declarant. (Crawford, supra, 541 U.S. at pp. 53-54.)
       “Crawford did not replace a conventional hearsay analysis. Instead, it added a
second layer of inquiry when hearsay is offered against a criminal defendant.” (People v.
Blacksher (2011) 52 Cal.4th 769, 811.) The Crawford opinion also recognizes that
statements offered “for purposes other than establishing the truth of the matter asserted”
fall outside the scope of the confrontation clause. (Crawford, supra, 541 U.S. at p. 59, fn.
9.) Accordingly, the threshold issue is whether the challenged statements were, in fact,
hearsay.
       Out-of-court statements are admissible if offered for a nonhearsay purpose, i.e.,
for something other than the truth of the matter asserted, so long as the nonhearsay
purpose is relevant to an issue in dispute. (People v. Montes (2014) 58 Cal.4th 809, 863
(Montes).) Pertinent here is the rule that “an out-of-court statement can be admitted for
the nonhearsay purpose of showing that it imparted certain information to the hearer, and
that the hearer, believing such information to be true, acted in conformity with such
belief.” (Ibid.) A statement that is offered to prove the effect on the hearer is nonhearsay
because “‘it is the hearer’s reaction to the statement that is the relevant fact sought to be
proved, not the truth of the matter asserted in the statement.’” (People v. Scalzi (1981)
126 Cal.App.3d 901, 907.)
       Sanchez’s trial counsel invited the now challenged cross-examination of Detective
Chavez by questioning the witness about why police focused their investigation on
Sanchez instead of pursuing leads about other suspects. The follow-up question by the
prosecution, and witness’s response, were properly admitted for a nonhearsay purpose
(effect on the listener) that was relevant to an issue in dispute, namely the reasoning
behind the witness’s investigatory efforts and decisions. (Montes, supra, 58 Cal.4th at
p. 863.) Given the logical and legally permissible basis for admitting the evidence in a
nonhearsay context, we reject appellant’s assertions of error.

                                             18.
   C. Cumulative Error
       Sanchez argues the cumulative effect of the errors alleged on appeal requires
reversal of his conviction. The foregoing discussions dispose of this claim, as there are
no errors to cumulate. (People v. Fernandez (2013) 216 Cal.App.4th 540, 567.)
   D. Denial of Presentence Conduct Credits
       The trial court awarded Sanchez 1,254 days of actual custody credit at the time of
sentencing, but denied him presentence conduct credits. The court relied on Penal Code
section 2933.2, subdivision (c), which makes presentence conduct credits unavailable to
persons convicted of murder.3 For the reasons hereafter stated, we agree with the parties
that Sanchez’s sentence was not subject to the restrictions of section 2933.2, and
recalculate his presentence credits according to the applicable statutory authorities. (See
People v. Smith (2001) 24 Cal.4th 849, 852-854 [unauthorized sentence may be corrected
in the first instance on appeal].)
       Under California law, a criminal defendant is entitled to credit against their
sentence for all days spent in custody while awaiting trial and/or sentencing. (§ 2900.5,
subd. (a); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 (Rajanayagam).)
Custody credit is calculated from the date of arrest through the time of sentencing.
(Rajanayagam, supra, 211 Cal.App.4th at p. 48.) Section 4019 provides for additional
presentence credits based on work time and good behavior, collectively referred to as
“conduct credit,” and specifies the rate at which such credit can be earned. (§ 4019,
subds. (a), (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
       Section 2933.2 prohibits any person convicted of murder from accruing
presentence conduct credit. (§ 2933.2, subd. (a).) However, the statute does not apply to
offenses committed prior to its effective date of June 3, 1998. (People v. Chism (2014)
58 Cal.4th 1266, 1336.) Sanchez is therefore entitled to receive presentence conduct
       3   All further statutory references are to the Penal Code.



                                              19.
credits in accordance with the laws in effect at the time of his offense.4 (Ibid.) Since
there is nothing in the record to suggest that Sanchez did not comply with the behavioral
requirements of section 4019, we must calculate his presentence conduct credits pursuant
to the terms of the statute as it existed in November 1985. (In re Marquez (2003) 30
Cal.4th 14, 25 (Marquez).)
       At the time of the subject offense, conduct credits under section 4019 could be
accrued at the rate of two days for every four days of actual time served in presentence
custody. (Stats. 1982, ch. 1234, § 7, pp. 4553–4554 [§ 4019, former subd. (f)]; Stats.
2010, ch. 426, § 2; see Marquez, supra, 30 Cal.4th at pp. 25-26; People v. Ramirez
(2014) 224 Cal.App.4th 1078, 1083.) Based on the method of calculation adopted by the
California Supreme Court under the former law, Sanchez’s presentence conduct credits
are determined by first dividing the amount of actual custody time (1,254 days) by four
and discarding any remainder, which leaves 313 days. (Marquez, supra, 30 Cal.4th at
pp. 25-26.) This number is then multiplied by two, resulting in 626 days of conduct
credit (1254 ÷ 4 = 313 [discarding remainder] x 2 = 626). (Ibid.)
       Sanchez contends he is entitled to 627 days of conduct credit, which we presume
is the result of his failure to discard the remainder prior to the second step of the
calculation. Respondent identifies the correct method of calculation, yet repeatedly states
that Sanchez should only be awarded 616 days of conduct credit. As we have explained,
the correct amount of time is 626 days. We modify the judgment accordingly.




       4 We note that section 2933.1, which would otherwise limit Sanchez’s conduct
credits to 15 percent of his presentence custody time, went into effect on September 21,
1994. (§ 2933.1, subds. (a) & (c)); People v. Camba (1996) 50 Cal.App.4th 857, 867.)
This statute is also inapplicable to crimes committed before it went into effect. (§ 2933.1,
subd. (d).)



                                              20.
                                    DISPOSITION
      Appellant’s sentence is modified to reflect an additional 626 days of presentence
conduct credit. As so modified, the judgment is affirmed.



                                                              _____________________
                                                                           Gomes, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Detjen, J.




                                          21.
