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Filed 6/13/23 P. v. Saechao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

---- THE PEOPLE,

Plaintiff and Respondent,

v. DAVID SAECHAO,

Defendant and Appellant. C096047 (Super. Ct. No. 18FE014155)

A jury convicted defendant David Saechao of first degree murder and found true a special circumstance allegation that the murder was committed during the commission of a burglary. The trial court sentenced defendant to an indeterminate term of life in prison without the possibility of parole.
Defendant now contends the trial court err ed in (1) excluding evidence of an anonymously written letter that, according to defendant, tended to show someone other
than defendant killed the victim, and (2) instructing the jury with CALCRIM No. 371 [Consciousness of Guilt: Suppression and Fabricatio n of Evidence]

. Finding no error or abuse of discretion , w e will affirm the judgment

. BACKGROUND After a night out in Sacramento, F.E. drove to check on his friend Guofang Wang
because F.E. was worried after Wang did not respond to a text. F.E. saw the garage door

at Wang’s house was broken. There was a light on in the garage. F.E. knew Wang grew marijuana but F.E. was not involved in the operation.2

F.E. called M.L. and asked M.L. to meet him and check on Wang’s house because
F.E. was concerne d. M.L. and L.N. met F.E. at a parking lot near the house. The three
drove to Wang ’s house in F.E. ’s van , with M.L. driving. M.L. saw the garage door was smashed in and did not see anyone around. He did not stop the van. But the three
returned later. Evidence showed F.E. ’s van trave lin g in the direction of Wang’s house, at 1:58 am and then again at 4:04 a.m. When they returned, M.L. and F.E. went to the front door. There was no response

to M.L. ’s knock. M.L. and F.E. entered the house upon discoveri ng the front door open

. L.N. did not go inside

. F.E. saw Wang lying face down on the floor. M.L. and F.E.
exited the house and M.L. called 911. The call was placed at 4:07 a.m. on June 24, 2018.
F.E. , M.L. and L.N. waited for authorities to arrive, showed their driver’s licenses to law enforcement officers and answered questions through an interpreter . They also provided DNA samples. Sacramento County Sheriff’s deputies responded to the scene in South
Sacramento

. It appeared that a car had rammed the garage door, leaving paint transfer on
the door. Wang was found dead in side the hous e. It appeared he had been laying there
for some time

. There were abrasions and contusions on his face, chest, torso, back, arms, hand, leg , and knee. He had neck compression injuries. The People’s forensic pathology expert opined that the causes of death were blunt force injuries and neck compression. The injuries were consistent with being kicked and punched in the head and body and manual strangulation.
W ang’s body was in the hallway near the kitchen. There was evidence of a struggle near the kitchen and in the living room and area leading to a room in the back of
the house

. The house had been ransacked

. But there were 550 marijuana plants in
various st ages of maturity, humidifiers, fans , and grow lights in the house and garage. DNA analysis of blood drops on the driveway connected the blood to defendant. Defendant’s DNA was also present on the cord around Wang’s ankles, a door leaned over3

Wang’s body, a wall near Wang’s body, the floor by the kitchen , a bed sheet, and Wang’s right and left shoulder areas and neck. DNA found in Wang’s fingernail scrapings was connected to defendant and defendant’s uncle Lai Saechao

. 1 B lood found on the front
metal sec urity door jamb was that of Lai. F.E. , M.L. and L.N. were excluded as DNA contributors, except for a blood drop on the bedsheet where the results were inconclusive
for F.E. , M.L. and L.N. Sometime between 2:00 p.m. on July 4, 2018 , and 12:30 a

. m

. on July 5, 2018, defendant’s car was left in a neighborhood in South Sacramento. The car remained at
th at location until law enforcement officers seized it on August 14, 2018. Although t he steering column of the car had been “ peeled ,” which could indica te th at the car was stolen , defendant’s car had not been reported stolen

. On July 19, 2018, defendant walked into the lobby of the Sacramento County
Main Jail and told a deputy that he had killed someone and “wanted to get this over
with .” Defendant said he went to a marijuana grow house in the area of 4 7th Avenue and Stockton Boulevard that had damage to the garage four weeks prior, was attacked by an Asian male, fought back , and the Asian male bit him on the finger and forearm. Defendant had an injury to his left forearm and finger. Defendant later told Sacramento County Sheriff’s detectives he was turning himself in for something that happened on
4 7th

. He said he knew the house was a marijuana grow house and went t here to take equipment. He did not tell the detectives he had killed someone. Detectives interviewed Lai on August 11, 2018. When asked about the homicide

1 Because defendant and his uncle share the same last name, we will refer to Lai by his first name for clarity . Defendant and Lai were tried together and we will refer to them collectively as defendants

. This court decided Lai ’s appeal (case No. C091327) i n March 2022

.4

on Burns Way, Lai denied any involvement in the homicide and repeatedly denied he had
been in th e house.
Defendant testified at trial and provided the following account

. H e went to Wang’s house to steal grow lights. He was b y himself. He used his car to push the garage door in and slid under the door. He then called Lai and ask ed that they meet at the house to get the money defendant owed Lai

. Defendant did not tell Lai about a burglary.
Defendant said he wrestled with a man inside the house and t he man bit defendant’s arm and finger

. Defendant hit the man ’s face and chest. Lai got the man off defendant as the man was choking defendant on the front porch

. Lai did not enter the house. Defendants
fled in separate cars

. Defendant saw the man getting up as he was leaving. Defendant
said he turned himself in because he had committed a burglary and then heard on the
news that someone had died ; he said he felt bad and could not sleep

. Defendant d enied
tell ing the deputy at the mai n jail that he had killed someone. He said he only admitted committing a burglary , but he lied to detectives that no one was with him at the house.
Lai also testified at the trial. He provided a similar account as defendant’s with regard to defendant calling Lai to pick up money and Lai rescuing defendant from a man choking defendant. Lai testified that he did not know defendant was committing a burglary. He said he got scratched a nd bled a little during the struggle on the front porch. The jury found defendant guilty of first degree murder. It found true the special circumstance allegation that the murder was committed during the commission of a burglary. The trial court sentence d defendant to an indeterminate term of life in prison without the possibility of parole.
DISCUSSION
I
Defendant argues the trial court erred in excluding evidence of an anonymously
written letter that , according to defendant, tended to show someone other than defendant
killed Wang

.5 A The People moved to exclude an anonymous ly written letter sent to the Sacramento Police Department after defendant s w ere arrested. Lai moved to admit
the letter. The l etter stated: Hi police. I sorry but I cannot give you m y name. I want to tell you guys that my friend die on Burns Way and 47 th A v enue was still alive. My other friend call me out at 6/23/18 at sometimes around 3 am and told me that someone broke into the house on Burns Way and 47 th Avenue. He told me that his friend had call him and told him that his house on Burns Way at the corner house that the door was open

. . . before we had left from the house where he had to pick me up from. When we had got their, he walked inside first and I was scare entering the door because I was scared. When I had enter the front door I seen my friend talking to him already asking him wh at happened. I seen my friend the one I had came with told me to close the door. And I did that. I ask him to call the police but he said no to me. He said we could go to jail. I was so scare standing by the front door. I see my friend that I had cam e with holding a rag over the worker mouth. I did not question him for what he had did to him. .

. . I thought my f r iend that I had came with was helping his. So I did not question him. I had told him to grab .

. . some water for him. But it seems like he

. . . didn’t want to. I realize that my friend had kill him because he had a rag are some grey stuff blocking his face .

. . which I know that it was already hard to breathe inside. I told him lets go and call the police but he was telling me to cut d own the weed trees. At the same time he was looking for money because I see him digging around. I don’t want feel guilty in the future but my friend kill him I know that for a fact

. B efore we left he took the recording DVR drive and took me to back to my place when I was going back I hear him calling his friend to come help clean up. I also

. . . know that it was not him that call the police. Sorry .

. . police but thats all I can give you guys. I will also leave some address where his other houses a re at including his friend house. Every houses are growing. I wish you guys catch .

. . my friend because hes greedy and selfish thats why he probably kill .

. . him because he knows that he has 25 thousands plus on him. They do recycle in that house. So he gets paid .

. . every few weeks. They know my family and they will kill me if I said there name. I’m just a worker just like him. I feel bad that he passed away. He came from East coast. Im from a different state myself. I know for a fact that my friend kill him and Im against that. Im a worker just like him trying to make money. So these are his places and friends house that I had been to a few someone else will tell you his name. .

. .6

The People argued that the letter constituted inadmiss ible hearsay and did not meet the requirements for admission as third party culpability evidence. The y u rged that the
letter lack ed indicia of reliability and theorized there was a substantial likelihood t he
letter was by a family member, friend or associ ate of defendants , intend ed to inject false information into the investigation. At the hearing, the People added that investigation
into the addresses provided in the letter showed no connection between the addresses and any participants in th e case. Defe ndant opposed the People’s motion , arguing the letter wa s admissible because
it raise d a reasonable doubt about his guilt. He claimed the letter name d F.E. , M.L. and
L.N. as the responsible parties , and the three men were engaged in the marijuana operatio n at Wang ’s house , giving them a motive for murder . Defendant further asserted
that the letter wa s reliable because it was received before defendants knew of F.E. , M.L.
and L.N. ’ s involvement in th e case and the letter contained detail s consistent with
information from F.E. , M.L. and L.N. and connected the three men to the murder. The trial court rejected the assertion that defendants had some thing to do with the letter based on discovery received from the prosecution , but said the timin g of the letter was suspect

. It ruled that the letter had little to no probative value because it was
anonymous. It also ruled that the letter was substantially more prejudicial than probative
in that it s admission would invite speculation and create a t rial within a trial. It further
found the letter unreliable inasmuch as investigation into the addresses provided in the letter found no criminal activity at the addresses. Also, the author of the letter pointed a finger at other people. T he trial court granted the People’s motion

.

B
Defendant contends the letter i s admissible as third party culpability and nonhearsay evidence and to the extent the letter i s hearsay, it i s admissible as a declaration against penal interest under Evidence Code section 1230.7

T hird party culpability evidence is admissible if relevant , unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion

or it is otherwise inadmissible under the rules of evidence. ( People v. Tur ner (2020)
10 Cal.5 th 786, 816 ; People v. Hall (1986) 41 Cal.3d 826, 833 .) Even if the letter qualifies as third party culpability evidence as defendant contends, it constitutes hearsay
and defendant fails to establish it is admissible under Evidence Code section 1230. (But see People v. Brady (2010) 50 Cal.4th 547, 559 [holding that third party culpability evidence in the form of an anonymous letter claiming responsibility for the charged murder was properly excluded where the author of the letter was ne ver identified].)
It is proper to exclude t hird party culpability evidence if it is inadmissible hearsay. ( People v. Bradford (1997) 15 Cal.4th 1229, 1324

- 1325; People v. Frierson (1991)
53 Cal.3d 730, 746.)
W e reject defendant’s contention that the tria l court did not exclude the letter on hearsay grounds. The People sought to exclude the letter as inadmissible hearsay. Although he did not cite Evidence Code section 1230 in the trial court , defendant
countered that the letter was reliable. I n ruling on the cross motions, t he trial court

sta ted that unlike the statements against penal interest in Chambers v. Mississippi (1973)
410 U.S. 284 [35 L.Ed.2d 297] ( Chambers ) , the letter here did not incriminate the auth or but pointed a finger at other people. It found the letter unreliable, which as we shall explain is the focus of the Evidence Code section 1230 hearsay exception.

“ ‘ Hearsay evidence ’ is evidence of a statement that was made other than by a
witness whil e testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible except as provided by law. (Evid. Code, § 1200, subd. (b).) Inasmuch as defendant offered the
le tter to show that F.E. , M.L. and L.N. (and not defendant) killed Wang, the letter was offered for a hearsay purpose. ( People v. Masters (2016) 62 Cal.4th 1019, 1061 ( Masters ).) Defendant did not argue in the trial court that the letter was offered for a8

nonhearsay purpose. Accordingly, his argument i s forfeited. ( People v. Ramos (1997)
15 Cal.4th 1133, 1178; People v. Fr ye (1985) 166 Cal.App.3d 941, 950. ) The declaration against penal interest exception to the hearsay rule is set forth in
Evidence Code section 1230 , which provides that evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay r ule if the declarant is unavailable as a witness and the statement, when made, so far subjected the declarant to the risk of criminal liability that a reasonable person in the declarant’s position would not have made the statement unless the declarant beli eved it to be true.
The focus of the Evidence Code section 1230 hearsay exception is the trustworthiness of the declaration. ( People v. Gordon (1990) 50 Cal.3d 1223, 1251 , overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 83 4 .) The proponent of the evidence must show that the statement is sufficiently reliable to warrant admission despite its hearsay character. ( People v. Westerfield (2019) 6 Cal.5th 632, 704 ( Westerfield ).) “ ‘In determining whether a statement is truly against in terest 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 declaran t, and the declarant’s relationship to the defendant.’ ” ( Ibid. ) We review a trial court’s ruling for abuse of discretion. ( People v.
Clark (2016) 63 Cal.4th 522, 590.)
In Westerfield , the defendant sought to admit evidence of a telephone call from an anonymous caller that supported the defendant’s alibi defense. ( Westerfield, supra , 6 Cal.5 th at p. 704.) The appellate court found no basis to conclude th a t the caller believed his identity would be discovered, subjecting him to criminal liability , and no error in the trial court’s finding that the evidence was not trustworthy because the basis for the caller’s claimed knowledge could not be tested. ( Id. at p. 705.) The appellate

court held that the declaration against penal interest exception did not apply. ( Id. at
pp. 704

- 705.)9

Here, there is no basis to conclude that the author of the letter believed the

statements in the letter would subject the author to criminal prosecution . First, the author
did not disclose his or her identity and there is no evidence the author believed the
authorities c ould discover his or her identity. In addition, according to the letter, an unidentified friend killed Wang. As the trial court found, the author of the letter pointed a finger at ano ther pe rson

. The a uthor did not claim any responsib ility for the killing. ( Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 172

- 173 [holding that statements implicating others and trying to avoid rather than assume liability do not provide any guarante e of reliability].) Thus, defendant fails to show that the letter was against the interest of the person who wrote i t. Further, the letter lacked indicia of reliability . T he identities of the author and
unnamed killer were unknown. ( Masters , supra , 62 Cal.4th at p. 1061 ; People v. Kerley (2018) 23 Cal.App.5th 513, 573 ( Kerley ) [finding no abuse of discretion in excluding anonymous letter as third party culpability evidence where, among other things, the
author of the letter was unknown and there was no evidence corroborat ing his or her statements] .) T

here was no evidence connecting F.E. , M.L. or L.N. to authorship of the
letter. Also, d etectives investigated the addresses referenced in the letter and found no
connecti o n to the case

. And contrary to defendant’s assertion, the evidence of traumatic injury to Wang’s neck did not co mport with the statement in the letter that the killer
smothered Wang. The pathologist testified that Wang suffered hemorrhages to the
muscles in his neck and fractures in h is larynx caused by applying pressure to th ose area s

. The causes of death were blunt force injuries and neck compression. The pathologist did not testify that Wang’s injuries were consistent with a smothering. In contrast, t he letter

s tated that the kil ler put a rag over the victim ’s mouth. The letter did not s tate that the
killer applied pressure to the victim ’s neck or hit or kicked the victim

. Based on the above, it was reasonable for the trial court to find the letter unreliable.10

Defendant relies on Chambers , supra , 410 U.S. 284, but that case is inapposite
because here defendant fails to demonstrate that the letter bore persuasive assurances of
trustworthiness. T

h e trial court in this case did not abuse its discretion in excludin g evidence of the letter.
II
Defendant also argues the trial court erred in instructing the jury with CALCRIM
No. 371 [Consciousness of Guilt: Suppression and Fabrication of Evidence] . He claims
there is no substantial evidence from which a jury could fi nd that defendant tried to
conceal evidence. The trial court instructed the jury pursuant to C ALCRIM No. 371 as follows :

“ If a defendant tried to hide evidence , that conduct may show that he was aware of his guilt. If you conclude that a defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by
itself. If you conclude that a defendant tried to hide evidence, you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty. ”
Al though defendant did not object to the CALCRIM No. 371 instruction in the
trial court , we nevertheless consider his contention because he argues the instructional

error affected his substantial rights. ( People v. Salcido (2008) 44 Cal.4th 93, 155.)
We review the claim de novo. (See People v. Hart (1999) 20 Cal.4th 546, 620 ( Hart ) .)
Add ressing the merits, we conclude t here was no instructional error in giving the challenged instruction

. A consciousness of guilt instruction i s warranted if there i s some evidence that, if believed by the jury, would sufficiently support the suggested infe rence. ( People v. Coffman & Marlow (2004) 34 Cal.4th 1, 102.) The evidence need not conclusively establish that defendant attempted to conceal evidence. (See Kerley, supra , 23 Cal.App.5th at pp. 565

- 566.)11

D efendant admitted using his car to ram Wang’s garage . The paint transfer on the garage door was the same color as defendant’s car . Defendant’s car was left somewhere
about 10 days after Wang’s body was discovered

. T he car was not reported stolen. In his closing statement, defendant’s trial counsel said one reasonable inference from the
evidence was that the car was abandoned. The record contains evidence from which
the jury could reasonably find that defendant attempted to hide evidence. ( Hart, s upra , 20 Cal.4th at p. 621 [holding that predecessor instruction to CALCRIM No. 371 was properly given where, among other things, the defendant used plywood to shield the car used in the charged offenses from view]; People v. Rodrigues (1994) 8 Cal.4th 106 0,
1139

- 1140; People v. Williams (1996) 46 Cal.App.4th 1767, 1780 [concluding that it was reasonable to assume that the defendant hid the clothing he wore on the day of the attacks where the police could not find the clothing in a search of his residence]. )
DISPOSITION The judgment is affirmed.

/S/ MAURO, J.

We concur:

/S/ ROBIE, Acting P. J.

/S/ RENNER, J.