Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order continuing wardship of the Superior Court of Los Angeles County, Charles Q. Clay III, Judge. Los Angeles County Super. Ct. No. VJ28671
Opri & Associates and Debra A. Opri for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
D.P., a minor, appeals from the order continuing wardship (Welf. & Inst. Code, § 602) entered following a determination that he committed count 1 – murder (Pen. Code, § 187) and count 2 – attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187) with findings as to those counts that a principal personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subds. (d) & (e)(1)), and the offenses were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)), count 3 - possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)) with a finding that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)), and count 4 – possession of live ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)), with a finding that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (d)). The court ordered appellant committed to the Division of Juvenile Justice. Appellant challenges the sufficiency of the evidence and raises admissibility issues. We affirm the order continuing wardship.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (In re Dennis B. (1976) 18 Cal.3d 687, 697), the evidence established that about 12:42 a.m. on November 29, 2003, Treyvionn Jackson was standing on a driveway near 342 Sherman Drive in Carson. Nicole Williamson (the decedent) lived at that address. Williamson was sitting in her car with a friend, Raynisha Bates. The car was parked across the street, facing west. Jackson was talking with persons who belonged to the Centerview gang. The Centerview gang was a rival gang of the 190th East Coast Crips gang.
Jackson testified as follows. A champagne-colored car which was like a 1996 or 1996 Corolla drove slowly eastbound by Jackson’s location. The car had been going about 15 miles per hour, but had slowed as it neared Williamson’s car. The champagne-colored car’s right front passenger, whom Jackson later identified as appellant, partially exited the right front passenger window, sat on the windowsill, pointed a revolver over the car’s hood, and began shooting. The suspect car came to within 10 feet of Jackson. Appellant was shooting at and around Williamson’s car. Other persons were near Williamson’s car. Appellant fired about four or five shots. He yelled “1-9-0,” reentered the suspect car, and threw up his hands as if he were making gang signs. The suspect car contained two persons: the shooter and the driver.
When Jackson saw this incident, he had been drinking Cognac and smoking marijuana. In particular, he testified he “had just barely had the bottle,” and he had “probably smoked a little bit, not even a whole joint.” Jackson did not feel drunk and did not “have enough to buzz.” Jackson could adequately see the car coming down the street because of the streetlights he was standing between. The area where the shooting occurred was claimed by the Centerview gang, which was a Pirus gang.
Shortly after the incident, Jackson described the shooter to police as kind of small, light-skinned, and wearing a short Afro. About December 2003, a wanted flyer was circulating depicting appellant’s photograph. Jackson had seen the flyer. Appellant, as depicted on the photograph, looked like the shooter.
Jackson told investigators in December 2003 that he was affiliated with the Centerview Piru Blood gang, but was not a gang member. In March 2004, Jackson told a private detective that the passenger in the suspect car was 16 to 17 years old.
In June 2005, Los Angeles County Sheriff’s Detective Mitchell Loman showed Jackson a photographic lineup (People’s exhibit No. 5) containing six photographs. Jackson selected a photograph of appellant (photograph No. 4) as depicting the shooter. Jackson, referring to appellant’s photograph, told the detectives, “‘There’s the shooter right there.’” At the adjudication, Jackson positively identified appellant as the shooter. Jackson testified he was positive “because it’s the first time I seen [sic] him since that night, and that’s him. From the side of his head to the front of his face, that’s him.”
Reginald Moore, a Centerview Piru gang member and friend of Williamson, testified he was standing in front of Williamson’s car, between her car and a pickup truck. Jarae Davis was with Moore. Moore saw a car driving eastbound down the street, and a male was sitting on the car’s passenger window holding a gun in his hands. The male was holding the gun with his arms extended directly in front of his chest. Moore saw a spark from the gun and heard five shots. The car was not driving fast, and at some point it slowed significantly. Either before or after the shooting, Moore heard someone yell “‘1-9-0.’” Moore testified the shooter had short hair and was light-skinned.
In June 2005, police showed Moore a photographic lineup (People’s exhibit No. 5) containing six photographs. Moore selected a photograph (photograph No. 4) depicting appellant as “being the one closest to looking like [the shooter] from that night.” At the adjudication, Moore indicated that appellant looked familiar to Moore as the person depicted in the photograph. Moore could not identify appellant in court but testified that appellant appeared to have the same characteristics as the person whom Moore saw shoot Williamson. Moore testified he never really saw the face of the person. Moore also testified that appellant appeared to have the same characteristics “[b]ecause the picture from in my mind that I drew up of the person that night, that’s the closest one out of the six-pack.” During cross-examination, Moore testified he told police that the shooter was a light-complected Black male with short hair and between 18 to 25 years old. Appellant, in court, did not look like he was over 18 years old.
Davis, a friend of Williamson, was in front of Williamson’s home. Davis saw a champagne-colored car, either a Camry or an Altima, driving eastbound on Sherman with a male sitting on its passenger windowsill. Davis saw the male holding, with two hands and with his arms extended, a revolver over the car’s roof. Davis saw the male fire four or five shots. Davis testified he saw the shooter’s “face and gun and everything.” After the shots were fired, the shooter yelled “1-9-0,” and did something with his hands.
In July 2005, investigators showed Davis a photographic lineup (People’s exhibit No. 5) containing six photographs, and he recognized one. Davis, shown the photographic lineup in court, testified he recognized the photograph (photograph No. 4). The photograph depicted appellant. When asked why Davis recognized him, Davis testified, “as far as my memory, that’s the face I remember. I mean, that’s the only face I got a really clear look at.” Davis testified the photograph reminded him of appellant, whom Davis identified in court. Davis also testified that appellant, in court, “looks a little older than that, but I remember him. That’s him.” Davis further testified that the passenger “had a low cut,” looked very young, and was “a little lighter than [Davis], around my complexion.”
Bates was in the car when the shooting started. She was shot in the chest and left arm, and a bullet remained in her back. She thought she was blinded by the shots from the gun. At the preliminary hearing, she testified concerning the car, “‘It was green. It was like a gold trim around it, like a Toyota Avalon.’” A bullet struck Williamson in the head, killing her.
Jonte Chrishon testified that in May 2005, Loman interviewed him. Chrishon told Loman that appellant told Chrishon that appellant “whacked some tennis shoes[.]” Chrishon told this to police because he felt “it was messed up because the girl died.” Loman testified that the fact that Chrishon mentioned people standing in front of a truck when he described the shooting corroborated his statements, since Chrishon had not been at the crime scene and Loman had not shown any photos of it to Crishon. Chrishon testified that “tennis shoes” was a term referring to Centerview Pirus gang members.
Loman testified that on May 6, 2005, he recorded a conversation between him and Patrischka Pryor, Chrishon’s mother, during which Pryor said the following. Appellant and others were at Pryor’s house shortly after the murder. Appellant and M.L. were bragging about the shooting. Pryor knew this because it “came from the horse’s mouth.” The girls were not the intended targets and “had nothing to do with this[.]”
In June 2005, Loman interviewed appellant concerning the Williamson murder. Appellant initially denied knowledge of the murder but ultimately blamed it on a fellow 190th East Coast Crips gang member. In particular, appellant said he was not involved in the case and did not do it. Appellant then changed his story, saying he did not commit the murder, a person named Collins stole a car, and appellant had gone around in the car with Javier Johnson, M.L., Collins, and another person. Appellant said that Johnson had a .38-caliber firearm, and a .380-caliber firearm was mentioned. Appellant also said that the day after the murder, Johnson told appellant something to the effect, “‘I messed up on that girl.’”
In July 2005, Loman placed appellant and M.L. in the back seat of a police car and recorded a conversation between appellant and M.L. While appellant and M.L. were discussing the Williamson murder, appellant said, “‘Only way I’m gonna go is if someone snitched, man, only way I’m losin’, cuz, is if somebody is snitchin’[.]’”
Los Angeles County Sheriff’s Department Sergeant Frederick Reynolds, a gang expert, testified that the 190th East Coast Crips gang and the Centerview Piru gang, a Bloods gang, were rival gangs. The instant shootings occurred in Centerview Pirus territory. The term “tennis shoes” was a derogatory term for the Centerview Pirus gang. According to Reynolds, appellant was a 190th East Coast Crips gang member, and the murder of Williamson was done in furtherance of a criminal street gang. We will present additional evidence where pertinent below.
CONTENTIONS
Appellant claims (1) there was insufficient evidence that he committed the offenses, (2) the tape recording of appellant and M.L. was inadmissible, and (3) the tape recording of Chrishon had insufficient evidentiary value.
DISCUSSION
1. There Was Sufficient Evidence That Appellant Committed the Charged Offenses.
Appellant claims there was insufficient evidence that he committed the present offenses. We disagree. Appellant concedes Williamson was murdered and Bates was shot. The only real issue is identity. Jackson testified that the suspect car was going about 15 miles per hour but slowed as it neared Williamson’s car. The suspect car came to within 10 feet of Jackson. Shortly after the incident, Jackson described the shooter to police as kind of small, light-skinned, and wearing a short Afro. Jackson told a private detective that the passenger was 16 to 17 years old. Jackson positively identified appellant as the shooter from photograph No. 4, and positively identified appellant at the adjudication.
Moore testified the suspect car was not driving fast and at some point slowed significantly. The shooter was light-complected and had short hair. Moore selected photograph No. 4, the photograph of appellant, as depicting the person who most resembled the shooter. Moore told police that the shooter was a light-complected Black male with short hair. Moore testified appellant in court did not look over 18 years old. Moore did not identify appellant in court, but did testify that appellant looked familiar as the person depicted in the photograph, and that appellant appeared to have the same characteristics as the shooter. Davis identified appellant from photograph No. 4, and identified him in court. Davis testified appellant had a “low cut,” looked very young, and was “a little lighter than [Davis], around my complexion.”
Chrishon testified that appellant told him that appellant “whacked some tennis shoes.” Chrishon and Reynolds testified that the term “tennis shoes” referred to members of the Centerview gang and, according to Reynolds, the term was derogatory. The shooting occurred in Centerview gang territory. Pryor told Loman that appellant was at her house shortly after the murder and bragged about the shooting. Appellant gave conflicting statements to Loman concerning appellant’s involvement in the shooting. Appellant suggested Johnson committed the murder, a suggestion which, viewed in light of the evidence of appellant’s guilt, the trial court reasonably could have viewed as false and evidencing appellant’s consciousness of his guilt. There was evidence the offenses were committed in furtherance of a criminal street gang. The shooter yelled “1-9-0.” As mentioned, the shooting occurred in Centerview territory. Appellant was a member of the 190th East Coast Crips, a rival gang, and therefore had a motive to commit the offenses. There was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed the present offenses.
We would reach this conclusion with or without appellant’s challenged statement to M.L. or any challenged statements or testimony from Chrishon.
2. The Tape Recording of Appellant and M.L. Was Admissible.
a. Pertinent Facts.
Loman testified during direct examination that the district attorney’s office filed charges against appellant on July 13, 2005. Loman also testified as follows. On July 13, 2005, Loman placed appellant and M.L. in the back seat of a patrol car. Loman placed a digital recorder on the front seat and “placed [M.L.] in the car with [appellant] to get them to discuss the case.” Loman recorded the conversation between appellant and M.L. M.L. knew he was being tape recorded but appellant did not. Loman testified that after he recorded the conversation, he listened to it and recognized the voices of appellant and M.L. on the tape. Appellant subsequently posed foundation and hearsay objections, which the court overruled.
M.L., appellant, and a third person were initially charged with the Williamson murder. However, Loman testified the charges against M.L. were dropped “after a proffer was made with the district attorney’s office for his testimony against [appellant] and also the fact that we had no witnesses that placed him inside the car.” The proffer was made in October 2005 after Loman participated in a “use immunity interview” with M.L.
The prosecutor advised the court that he had an 18-second portion of the tape that he wanted to play to the court, and he had a transcript. The prosecutor later explained that the entire tape was 39 minutes in length, much of which was without recorded conversation because the tape had been playing both before appellant and M.L. were placed in the car, and after they were removed from it. The prosecutor wanted to play a portion in which M.L., then appellant, made a statement. The prosecutor indicated he had a transcript of “that short statement.” The court marked the transcript as People’s exhibit No. 17 for identification.
People’s exhibit No. 17 is entitled, “Portion of monitor between [appellant] and [M.L.] on July 13, 2005 in sheriff’s patrol car located in Carson station parking lot.” (Some capitalization omitted.) The exhibit, in pertinent part, reflects only the following single colloquy: “ML – They got evidence cuz, they got fingerprints on the gun, they got fingerprints on the car, that’s all they need cuz, they’ll make it stick, they be pointing nigger’s out. [¶] [Appellant]: Only way I’m gonna go is if someone snitched man, only way I’m losin cuz is if somebody is snitchin.” (Peo. Exh. No. 17.)
Appellant later objected to the playing of the tape and its introduction into evidence. Appellant objected on authentication and hearsay grounds, and on the ground only a portion of the tape was being introduced. Regarding authentication, appellant argued the tape could not be authenticated because the copies of the tape provided to appellant were inaudible.
The court overruled appellant’s “objection,” noting that if the People had a better version of the tape than the copy provided to appellant, he would be permitted to listen to it in its entirety for use when appellant conducted cross-examination or presented defense evidence. The court reserved ruling on the admissibility of the transcript until the court had an opportunity to listen to the tape and the People moved the transcript into evidence. The court ruled the prosecutor could play the tape to the court.
After the court so ruled, but before the tape was played, Loman suggested he had told M.L., as a ruse, that Loman had obtained fingerprints from the suspect car and gun. The prosecutor then indicated he would play a small portion of the tape, and the court said he could.
Appellant’s counsel later told the court that appellant’s counsel and the prosecutor had conversed, and the prosecutor had no problem playing the entire tape. The prosecutor replied, “If [appellant’s counsel] wants the court to hear the entire tape. I’m just going to play this portion, Your Honor. I have no objection if she wants to, on her case, play the entire tape.” Appellant’s counsel thanked the prosecutor. The reporter’s transcript reflects that the “tape was played in open court.”
The following then occurred: “Q By [The Prosecutor]: Now, sir, the statement by [M.L.] regarding fingerprints, that’s information that you gave him on a ruse? [¶] A Yes.” Loman listened to the tape a few times. Loman testified that there was no doubt that “they were discussing the murder” of Williamson.
Loman then testified that appellant made the comment, “‘only way I’m gonna go is if someone snitched, man, only way I’m losin[g]’, cuz, is if somebody is snitchin[g]’[.]’” Appellant posed an authentication objection which the court overruled. Loman subsequently indicated that he knew it was appellant’s voice because of Loman’s familiarity with the voices of appellant and M.L. based on Loman’s interview of them, and the fact that Loman had set up the recording of the conversation between appellant and M.L. Appellant posed foundation and authentication objections which the court overruled.
M.L. was 15 or 16 years old, and appellant was 15 years old. The two were put in the police car for the Williamson murder, and not for an unrelated charge. The following occurred: “Q [The Prosecutor:] . . . [I]t was an in-custody precharge tape-recording -- [¶] A [Loman:] No, post-filing.”
Regarding Miranda admonitions, the following occurred during cross-examination of Loman: “Q Prior to this tape-recording, did anyone advise [appellant] of his Miranda rights? [¶] A No. No, I take that back. Upon arresting him, he was advised of his Miranda rights.” The following later occurred: “Q So it is correct that he was not Mirandized at the time he was put in the patrol car with the tape-recording? [¶] A Yes. [¶] [The Prosecutor]: Objection. Misstates the testimony. He was Mirandized. [¶] The Court: Sustained as phrased.” Still later, Loman testified that at the time he placed appellant in the patrol car, he intended to record a conversation and, at that time, Loman did not advise appellant of his Miranda rights for that purpose.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Subsequently, Loman testified as follows: “[Appellant] was arrested by Carson OSS. He was brought to the station. I went to advise him of his rights. He stated he did not want to speak to me any further. At that point, there was a short time in between me talking to him and then talking to [M.L.]. After talking to [M.L.], both minors were placed in the back seat of the patrol car. And after that occurred, I had somebody book both of them.”
The court listened to the entire tape. People’s exhibit No. 17, the above mentioned transcript of a portion of the tape, was later admitted in evidence. The record does not reflect that the tape or any portion thereof was admitted in evidence.
b. Analysis.
Appellant claims the tape was inadmissible. We note the transcript (People’s exhibit No. 17) of a portion of the tape, not the tape itself, was admitted in evidence. Appellant appears to be claiming that the trial court erred by permitting the introduction of the above mentioned transcript into evidence because the portion of the tape reflected in the transcript was inadmissible. We disagree.
(1) The Tape Was Authenticated.
Appellant first claims the tape was irrelevant because it was not authenticated. We reject the claim. Evidence Code section 1400, provides, in relevant part, that “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . .” Moreover, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
In the present case, and before the tape was played to the court, Loman testified that he placed appellant and M.L. in the back seat of a patrol car. Loman placed a digital recorder on the front seat with a view to getting appellant and M.L. to discuss the case, and Loman testified that he “had that conversation recorded.” Loman also testified he had an opportunity right after that incident to listen to his recorder, and he recognized the voices of appellant and M.L. on the tape.
After the tape was played, Loman testified he had listened to the entire tape a few times and there was no doubt appellant and M.L. were discussing Williamson’s murder. Loman also testified that appellant made the statement, “‘Only way I’m gonna go is if someone snitched, man, only way I’m losin’, cuz, is if somebody is snitchin’[.]’” Loman further testified that that was based on his “knowledge of interviewing” appellant and M.L. and hearing their voices, and “being there or having set this up as far as with [Loman’s] digital recorder.”
There was sufficient evidence, including Loman’s familiarity with the voices of M.L. and appellant, authenticating the tape as a recording of the conversation between appellant and M.L., during which conversation appellant made the statement quoted in the above paragraph. We note appellant’s argument at the adjudication was not that Loman was insufficiently familiar with the voices of M.L. and appellant to identify them, but that the tape was inaudible. The trial court did not abuse its discretion to the extent it overruled appellant’s relevance and authentication objections to the introduction of the tape.
To the extent appellant argues the transcript was not authenticated, appellant concedes People’s exhibit No. 17 was “a transcript of a very short portion (18 seconds) of a 39 minute tape recording, . . .”
(2) No Reversible Massiah or Miranda Error Occurred.
Appellant claims that introduction of the tape violated his rights under Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246] (Massiah). “‘In Massiah . . ., the high court held that once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant.’ [Citations.] The Massiah right, . . . applies only to ‘“offenses as to which adversary judicial criminal proceedings have been initiated”’ [citation], such proceedings including ‘“formal charge, preliminary hearing, indictment, information, or arraignment.”’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 433-434.)
In the present case, charges already had been filed in juvenile court against appellant by the time Loman, apparently at the sheriff’s station, placed him in the patrol car with M.L. Moreover, Loman surreptitiously put the recorder in the car and “placed [M.L.] in the car with [appellant] to get them to discuss the case.” Loman told M.L. that his fingerprints had been found on the suspect car and gun, and Loman said this as a ruse to get appellant to talk. It is not clear whether M.L. knew this was a ruse. However, it is clear that M.L. knew that he was being tape recorded. Moreover, charges against M.L. were ultimately dropped, apparently after negotiations with the district attorney’s office concerning the possibility of M.L. testifying against appellant. We assume without deciding that appellant’s statement in the patrol car was obtained in violation of Massiah.
Appellant also claims Miranda error occurred. We reject that claim. Even if M.L. were a police agent, there is no evidence that appellant knew this; therefore, Miranda’s concern about police coercion was not implicated and Miranda was inapplicable. (Cf. People v. Plyler (1993) 18 Cal.App.4th 535, 544-545; People v. Guilmette (1991) 1 Cal.App.4th 1534, 1539-1542.)
In any event, we evaluate whether any Massiah error was prejudicial under the standard of review enunciated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]. (People v. Neely (1999) 70 Cal.App.4th 767, 791; People v. Cribas (1991) 231 Cal.App.3d 596, 606-607.) This is equally true of any Miranda error. (People v. Sims (1993) 5 Cal.4th 405, 447.)
We have set forth in our Factual Summary the pertinent facts concerning the offenses, and will not repeat those facts here. Suffice it to say that, even if the trial court committed Massiah and/or Miranda error by admitting the challenged statement into evidence, the remaining evidence presented overwhelming evidence of appellant’s guilt as to the offenses; therefore, the alleged error was harmless beyond a reasonable doubt and does not warrant reversal of the judgment. (Cf. Chapman v. California, supra, 386 U.S. at p. 24.)
(3) The Tape Was Relevant and Admissible as Against Lack of Foundation and Hearsay Objections.
Appellant makes several claims under the subheading in his brief that the transcript was irrelevant, lacked foundation, and was inadmissible hearsay. We reject them all.
Appellant claims his right to confrontation was violated because M.L. did not testify as to his statement eliciting appellant’s statement. We disagree. M.L.’s statement was on the tape and transcript. His statement was relevant to make appellant’s reply understandable. (Evid. Code, §§ 210, 351, 356.) As such, M.L.’s statement was nonhearsay, and the right to confrontation does not restrict the introduction of nonhearsay evidence. (Cf. People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.)
Evidence Code section 210, states, in pertinent part, that: “‘Relevant evidence’ means evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 351, states: “Except as otherwise provided by statute, all relevant evidence is admissible.” Evidence Code section 356, states, in pertinent part: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
Appellant claims that his statement in the transcript that “‘Only way I’m gonna go is if someone snitched, man, only way I’m losin’, cuz, is if somebody is snitchin’[.]’” was irrelevant. We disagree. We previously have concluded that Loman adequately authenticated the tape and the fact that appellant was the person who made the challenged statement.
Moreover, evidence was presented at the adjudication that there may have been one or more persons in the back seat of the suspect vehicle. Charges were filed against appellant, M.L., and a third person for the Williamson murder. Appellant and M.L. had been in custody because of the Williamson murder, not for an unrelated charge. Appellant’s statement reasonably may be understood as indicating that the only way he could have been incriminated was if someone had said something that incriminated him, and that he was referring to incrimination for the Williamson murder. That is, appellant’s statement (quoted in the previous paragraph) was relevant evidence of consciousness of his guilt in the present case. The fact that there may have been alternative explanations for appellant’s statement does not compel rejection of the inference that his statement was motivated by consciousness of guilt of the present offenses. Any alternative explanations simply went to the weight of the evidence, and it was the court’s function to determine which of any several possible reasons actually explained appellant’s statement. (Cf. People v. Perry (1972) 7 Cal.3d 756, 772-777; People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)
Appellant claims his right to confrontation was violated because he did not testify to his statement. However, appellant’s statement came within the admission exception (Evid. Code, § 1220) to the hearsay rule; therefore, introduction of his statement into evidence did not violate his right to confrontation. (Cf. People v. Alvarez (1968) 268 Cal.App.2d 297, 305.) No further foundation was necessary.
Appellant claims “Loman’s testimony that he reviewed the tape several times, and he says that the context was the Williamson murder” (sic) was hearsay lacking foundation. However, Loman’s testimony that “he reviewed the tape several times” was not testimony relating an extrajudicial statement or, a fortiori, hearsay.
Moreover, Loman did not testify that the “context was the Williamson murder.” Loman, referring to appellant and M.L., testified there was no doubt that “they were discussing the [Williamson] murder.” That testimony implied appellant and M.L. made statements, and that the statements pertained to the Williamson murder. To the extent the testimony implied appellant and M.L. made statements, we have previously discussed their admissibility. The extrajudicial statements of M.L. were nonhearsay, the statements of appellant fell within the admissions exception to the hearsay rule, and all of the statements were admissible. To the extent Loman characterized those statements as
pertaining to the Williamson murder, he merely presented admissible lay opinion. The trial court did not abuse its discretion by admitting in evidence the transcript of the challenged statement made by appellant.
Evidence Code section 800, states: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.”
(4) The Tape of Chrishon’s Statements to Police Had Sufficient Evidentiary Value.
(a) Pertinent Facts.
On May 11, 2005, Loman and another investigator interviewed Chrishon at the sheriff’s station, and tape recorded the interview. The transcript (People’s exhibit No. 2) was admitted in evidence. The transcript, fairly read, and viewed in the light most favorable to the People, reflects as follows. The day after the Williamson murder, appellant and others, including a person whose first name was the same as that of M.L., came to Chrishon’s residence. Appellant and the others who came to Chrishon’s residence said that they had stolen a car and had gone to “get in a drive-by in Centerview.” (Peo. Exh. No. 2/p. 3.) They also told Chrishon that they had “just finished bustin[g] on some tennis shoes.” (Peo. Exh. No. 2/p. 3.) The term “tennis shoes” referred to Centerview gang members. Chrishon told appellant and the others that they had to leave. According to Chrishon, appellant had been “putting in work” (Peo. Exh. No. 2/p.4) for the gang.
Fairly read, the transcript reflects Chrishon referred to appellant and the others by the term “they.”
Appellant and the others told Chrishon that appellant was the shooter, the person whose first name was M. was involved in the shooting, and a third person was the driver. At some point prior to the shooting, the others had given appellant a .380-caliber firearm because he was trying to “earn his stripes.” (Peo. Exh. No. 2/p. 11.) Appellant and the others shot at a car. They also came to Chrishon’s residence and indicated they had to trade off guns they had used in the shooting, a .38-caliber revolver and a .380-caliber firearm.
At the adjudication, Chrishon, a People’s witness, denied remembering during direct examination various alleged statements he made to police which incriminated appellant. The People later played the tape of Chrishon’s interview.
During cross-examination the following occurred: “Q The information that you told the police officers as to what they said in the tape recording, was that information that you considered to be bragging or just a story they made up or just information that you were given that they were the ones that committed the crimes? [¶] A That’s what they came and told me. [¶] Q Who told you? [¶] A [Appellant].” According to Chrishon, police told him to tell police “about the girl” in order for his unrelated case to be dismissed. Police told Chrishon that the police knew appellant “‘did it’” and the police just needed to hear Chrishon say that. Based on that, Chrishon told the police what they wanted to hear.
During redirect examination, Chrishon testified he told police what he knew about the murder of Williamson. The police did not tell Chrishon what to say. Chrishon told police what Chrishon knew. Chrishon could have saved the time it took to play the tape by simply testifying that appellant came over the next morning and told appellant about Williamson’s murder. However, Chrishon testified he did not initially so testify because he “forgot all about that.” Chrishon also testified that “hearing the tape brought all that back,” and he remembered it.
(b) Analysis.
Appellant claims Chrishon’s testimony lacked sufficient evidentiary value. “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” . . . .’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.)
Although appellant asserts various reasons why Chrishon’s statement to police, and testimony, lack sufficient evidentiary value, we have read that statement and testimony. The trial court reasonably could have concluded that Chrishon truthfully incriminated appellant during Chrishon’s taped interview and when, at the adjudication, he confirmed the truth of the statements he made during that interview. The trial court also reasonably could have concluded that Chrishon was fabricating to the extent he denied remembering his incriminating statements or claimed he made them only because of police prompting. It cannot be said that there is a physical impossibility that his incriminating statements and testimony were true, or that their falsity was apparent without resort to inference or deduction. We reject appellant’s claim.
DISPOSITION
The order continuing wardship is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.